No Solicitation. (a) Subject to the provisions of Section 5.2(c), from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company and its subsidiaries will not, nor will they authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them to, directly or indirectly, (i) solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors of the Company from (i) in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Company.
Appears in 2 contracts
Sources: Merger Agreement (Palm Inc), Merger Agreement (Extended Systems Inc)
No Solicitation. (a) Subject to the provisions of Section 5.2(c), from and after From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement pursuant to in accordance with Article VII, except as specifically permitted by this Section 5.4 or Section 5.18, the Company and its subsidiaries will shall not, nor will they authorize or permit any and shall cause each of their respective officersits Subsidiaries, directors, affiliates executive officers, or employees or any investment bankercontrolled Affiliates not to, attorney or and shall instruct its other advisor or representative retained by any of them Representatives not to, directly or indirectly, :
(i) solicit, initiate, encourage facilitate or induce the makingknowingly encourage, submission directly or announcement of indirectly, any Acquisition Proposal (as hereinafter defined)inquiries, (ii) participate in any discussions offers or negotiations regardingproposals that constitute, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may could reasonably be expected to lead to, any Acquisition Takeover Proposal, ;
(iiiii) engage in discussions with or negotiations with, furnish or disclose any person with respect to any Acquisition Proposal, except as non-public information relating to the existence Company or any of these provisionsits Subsidiaries to, or give access to the Company Assets to, any Person that has made or may be considering making any Takeover Proposal;
(iviii) approve, endorse or recommend any Acquisition Proposal or Takeover Proposal; or
(viv) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise Contract relating to any Acquisition Transaction; providedTakeover Proposal.
(b) Immediately upon expiration of the Go-Shop Period, howeveruntil the termination of this Agreement in accordance with Article VII, the Company shall, and shall cause each of its Subsidiaries, Representatives and Subsidiaries’ Representatives to, immediately cease any existing solicitations, discussions or negotiations with any Person conducted with respect to any Takeover Proposal (other than with respect to each Excluded Party only for so long as such Person is and remains an Excluded Party and as otherwise permitted by this Section 5.4). The Company shall promptly inform its Representatives and its Subsidiaries’ Representatives of the Company’s obligations this Section 5.4.
(c) The Company shall notify Parent as promptly as possible within forty-eight (48) hours after receipt of (i) any Takeover Proposal or any inquiry that nothing contained could reasonably be expected to lead to, or result in, a Takeover Proposal, (ii) any request for non-public information relating to the Company or any of its Subsidiaries that could reasonably be expected to lead to, or result in, a Takeover Proposal or (iii) any request for access to the Company Assets by any Person that has made any Takeover Proposal, which notice shall be in writing and shall include the identity of such Person or Persons, the material terms and conditions of such Takeover Proposal, indication or request, as applicable, and, if available, a copy of such Takeover Proposal, inquiry, or request. The Company shall keep Parent reasonably informed on a prompt basis of the status and material details of any such Takeover Proposal, inquiry, or request.
(d) Subject to the Company’s compliance with the provisions of this Section 5.4 shall prohibit the ----------------- Board of Directors and prior to obtaining of the Requisite Company from Vote, nothing in this Agreement shall prevent the Company (acting upon the recommendation of the Special Committee) or the Special Committee from:
(i) engaging in response discussions or negotiations with, or furnishing or disclosing any non-public information relating to an unsolicitedthe Company or any of its Subsidiaries or giving access to the Company Assets to, any Person who has or Persons who have made a bona fide fide, written Acquisition and unsolicited Takeover Proposal from if the Special Committee determines that such Takeover Proposal may result in a reputable and responsible third party for a Company Acquisition that the Board of Directors of Superior Proposal, but only so long as the Company has caused such Person or Persons to enter into an Acceptable Confidentiality Agreement with the Company, and the Special Committee has, in good faith, (A) determined, based on the information then available and after consultation with the Company Financial Advisor, that such bona fide, written and unsolicited Takeover Proposal either constitutes a Superior Proposal or could reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably be expected to lead to to, or result in, a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting (B) determined, after consultation with outside legal counsel, that the failure to take such action could be inconsistent with the party making such Acquisition Proposal written questionsdirectors’ fiduciary duties under applicable Law; and
(ii) entering into an agreement, arrangement or understanding providing for the sole purpose implementation of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior OfferProposal (an “Alternative Acquisition Agreement”) and terminating this Agreement pursuant to Section 7.4(a), to the extent that if, and only if, (A) the Company and its Representatives have not breached (other than any de minimis breach) any of their obligations under Section 5.4 (as modified by Section 5.18) (B) the Company Board of Directors (acting on the recommendation of the Company concludes Special Committee) or the Special Committee, in good faith, after consultation with the Company Financial Advisor and its outside legal counsel, determines: (I) that its a bona fide, written and unsolicited Takeover Proposal constitutes a Superior Proposal, and (II) that failure to enter into an Alternative Acquisition Agreement and terminate this Agreement pursuant to Section 7.4(a), could be inconsistent with the directors’ fiduciary obligations duties under applicable law require it to do soLaw, (C) the Company, as promptly as possible after such determinations, notifies Parent in writing that the Company Board (acting on the recommendation of the Special Committee) or the Special Committee has made the determinations provided in the foregoing clause (B), (D) during the three (x3) concurrently with furnishing any such nonpublic information to, or written questions Business Day period following Parent’s receipt of the notice provided pursuant to such partythe foregoing clause (C), the Company gives shall have, and shall have caused its Representatives to have, negotiated with Parent written notice and its Representatives reasonably and in good faith in furtherance of making such commercially reasonable adjustments to the terms and conditions of this Agreement as would enable the Company to proceed with the Merger, (E) after the conclusion of the Company's intention period provided in the foregoing clause (D), Company Board (acting on the recommendation of the Special Committee) or the Special Committee, acting reasonably and in good faith, determines, taking into account the negotiations with Parent and its Representatives and any adjustments to furnish nonpublic informationthe terms and conditions of the Agreement proposed by Parent, or after consultation with the Company Financial Advisor and outside legal counsel, (I) that such bona fide, written questions and unsolicited Takeover Proposals continues to such party constitute a Superior Proposal, and (yII) that the failure to enter into an agreement, arrangement or understanding providing for the implementation of such Superior Proposal and the termination of this Agreement pursuant to Section 7.4(a), could be inconsistent with the directors’ fiduciary duties under applicable Law, (F) after such determinations by the Company Board (acting on the recommendation of the Special Committee) or the Special Committee, acting reasonably and in good faith, resolves to terminate this Agreement in accordance with Section 7.4(a) and (G) the Company receives from such party an executed confidentiality agreement containing customary limitations on terminates this Agreement (within two (2) Business Days following the use and disclosure of all nonpublic written and oral information furnished to such party on behalf conclusion of the Company, the terms of which are at least as restrictive as the terms contained three (3) Business Day period referred to in the Confidentiality Agreementforegoing clause (D)) pursuant to Section 7.4(a).
(e) Neither the Special Committee nor the Company Board shall withdraw, and (C) contemporaneously with furnishing any such nonpublic information modify or amend, or propose to such partywithdraw, modify or amend, the Company furnishes such nonpublic information Board Recommendation in any manner adverse to Parent unless (to the extent such nonpublic information has not been previously furnished by i) the Company terminates this Agreement as provided in Section 5.4(d) pursuant to ParentSection 7.4(a) and or (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with Intervening Event has occurred and the party making such Acquisition Proposal to Company Board (acting on the extent that (A) the Board of Directors recommendation of the Company concludes Special Committee) or the Special Committee determines in good faith, after consultation with its outside counsellegal counsel that the failure to withdraw, that its fiduciary obligations under applicable law require it modify or amend, or propose to do sowithdraw, (B) (x) concurrently with entering into negotiations with such partymodify or amend, the Company gives Parent written notice of Board Recommendation could reasonably be likely to be inconsistent with the Company's intention to enter into negotiations with such party and directors’ fiduciary duties under applicable Law.
(yf) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions Nothing set forth in this Agreement shall prohibit the preceding two sentences by any officerCompany from (i) complying with its disclosure obligations under U.S. federal or state Law with regard to a Takeover Proposal, director or employee (ii) taking and disclosing to the 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, or (iii) making any of its subsidiaries “stop, look and listen” or any investment banker, attorney or other advisor or representative similar communication of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 type contemplated by Rule 14d-9(f) under the CompanyExchange Act.
Appears in 2 contracts
Sources: Merger Agreement (Steel Partners Holdings L.P.), Merger Agreement (Steel Connect, Inc.)
No Solicitation. (a) Subject On the date of this Agreement, the Company shall, and shall cause each of its Subsidiaries and each of its and its Subsidiaries’ respective officers, directors, employees, consultants, agents, advisors, Affiliates and other representatives (collectively, “Representatives”) to (i) immediately cease any solicitation, encouragement, discussions or negotiations with any Persons that may be ongoing with respect to a Takeover Proposal, and (ii) request such Person to promptly return or destroy all confidential information concerning the provisions Company and the Company’s Subsidiaries. Except as permitted by this Section 5.2, the Company shall and shall cause each of Section 5.2(c)its Subsidiaries and Representatives not to, from and after the date of this Agreement until the Effective Time or or, if earlier, the termination of this Agreement pursuant to in accordance with Article VII, the Company and its subsidiaries will not, nor will they authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them to, directly or indirectly, (iA) solicit, initiateinitiate or knowingly facilitate or encourage (including by way of furnishing non-public information) any inquiries regarding, encourage or induce the making, submission or announcement making of any Acquisition Proposal (as hereinafter defined)proposal or offer that constitutes, or could reasonably be expected to lead to, a Takeover Proposal, (iiB) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any non-public other party information in connection with respect toor for the purpose of encouraging or facilitating, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition a Takeover Proposal or (vC) enter into any letter of intent or similar document or any contractintent, agreement or commitment contemplating agreement in principle with respect to a Takeover Proposal.
(b) Notwithstanding anything to the contrary contained herein, if at any time on or otherwise relating after the date of this Agreement and prior to obtaining the Company Stockholder Approval, the Company or any Acquisition Transaction; providedof its Representatives receives a written Takeover Proposal from any Person, however, which Takeover Proposal was made or renewed on or after the date of this Agreement and that nothing contained in did not result from any breach of this Section 5.4 shall prohibit the ----------------- Board of Directors of the Company from (i) in response to an unsolicited5.2, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that if the Board of Directors of the Company has reasonably concluded (based ondetermines in good faith, among other thingsafter consultation with independent financial advisors and outside legal counsel, that failure to take such action would be inconsistent with the advice of a financial advisor of nationally recognized reputation), directors’ fiduciary duties under applicable Law and that such Takeover Proposal constitutes or is reasonably expected to lead to a Superior OfferProposal, furnishing nonpublic then the Company and its Representatives may (x) furnish, pursuant to an Acceptable Confidentiality Agreement, information (including non-public information) with respect to the party Company and its Subsidiaries to the Person or group of Persons who has made such Takeover Proposal; provided that the Company shall promptly provide to Parent any material non-public information concerning the Company or its Subsidiaries that is provided to any Person given such access which 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 Takeover Proposal; provided, further that the Company shall promptly provide to Parent (and in any event within 48 hours) (i) a copy of any Takeover Proposal made in writing provided to the Company or any of its Subsidiaries, and the identity of the Person making the Takeover Proposal, and submitting to the party making such Acquisition Proposal (ii) a written questions, the sole purpose summary of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such partyTakeover Proposal not made in writing. From and after the date hereof, the Company gives Parent shall not grant any waiver, amendment or release under any standstill agreement without the prior written notice consent of Parent. For the Company's intention purposes of this Agreement, “Acceptable Confidentiality Agreement” means any confidentiality and standstill agreement that contains provisions that are no less favorable to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms than those contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any it being understood that such nonpublic information to such party, confidentiality agreements need not prohibit the Company furnishes such nonpublic information to Parent (submission of Takeover Proposals or amendments thereto to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Company’s Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the CompanyDirectors.
Appears in 2 contracts
Sources: Merger Agreement (Aeroways, LLC), Merger Agreement (Cke Restaurants Inc)
No Solicitation. (a) Subject to the provisions Effective as of Section 5.2(c), from and after the date of this Agreement and until the earlier of (1) the Effective Time or and (2) the date of termination of this Agreement pursuant to Article VIIthe provisions of Section 10.1, the Company and its subsidiaries neither Party will not, take nor will they authorize or any Party permit any of their respective its directors, officers, directorsagents, affiliates or employees or any investment bankeremployees, attorney Affiliates, attorneys, accountants, financial advisers or other advisor or representative retained by any of them torepresentatives (collectively, “Representatives”) to (directly or indirectly, ): (i) solicit, initiate, encourage or induce take any action intended to encourage the making, submission or announcement of any Acquisition Proposal (as hereinafter defined)Proposal, or (ii) participate in any discussions or negotiations regarding, or furnish to any person Person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any an Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that prior to the approval and adoption of this Agreement and the transactions contemplated by this Agreement by shareholders, nothing contained in this Section 5.4 Agreement shall prohibit the ----------------- Board of Directors of the Company prevent any Party from (i) furnishing information to, or engaging in response to negotiations or discussions with, any Person in connection with an unsolicited, unsolicited bona fide written Acquisition Proposal from a reputable by such Person, if and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (Ax) the such Party’s Board of Directors of the Company concludes determines in good faithfaith (after consultation with its advisors) that such Acquisition Proposal is a Superior Proposal, and such Party’s Board of Directors determines in good faith (after consultation with its outside legal counsel), in the exercise of its fiduciary duties, that to do otherwise would be inconsistent with its fiduciary obligations under applicable law require it duty to do sothe shareholders of such Party, (By) (x) concurrently with prior to furnishing any such nonpublic information to, or written questions to engaging in negotiations or discussions with, such partyPerson, the Company gives Parent written notice such Party’s Board of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company Directors receives from such party Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished with terms no more favorable to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained Party than those set forth in the Confidentiality AgreementAgreement to which the Party is bound, and (Cz) contemporaneously with furnishing any such nonpublic information Party gives the other Party five business days’ prior written notice of its intention to take such partyaction.
(b) Except as set forth in this Section 8.8, neither Party’s Board of Directors shall (i) withhold, withdraw, amend, change or modify, in each case in a manner adverse to the Party, the Company furnishes approval or recommendation by such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Party’s Board of Directors of this Agreement, and the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do soMerger, (Bii) approve or recommend any Acquisition Proposal, or (xiii) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality any agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting Notwithstanding the foregoing, it if, prior to the approval and adoption of this Agreement and the transactions contemplated by this Agreement by any Party’s shareholders, such Party’s Board of Directors determines in good faith (after consultation with its advisors), in the exercise of its fiduciary duties, that (x) the Acquisition Proposal constitutes a Superior Proposal, and (y) to do otherwise would be inconsistent with its fiduciary duty to the shareholders of any Party, after giving five business days’ prior written notice to the other Party, specifying the material terms thereof and the identity of the party making such proposal; provided, however, the identity of the party making such proposal shall not be identified if any Party is understood prohibited from such making disclosure pursuant to a written confidentiality agreement, such Party’s Board of Directors may (A) withhold, withdraw, amend, change or modify its approval or recommendation of this Agreement and the Merger or (B) enter into an agreement with respect to a Superior Proposal, and shall, in the case of (B), terminate this Agreement in accordance with Section 10.1; provided, however, that any violation Party shall have caused its financial and legal advisors to negotiate in good faith with any Party during such five business days to make such adjustments to the terms and conditions of this Agreement as would enable any Party to proceed with the Merger on such adjusted terms. Each Party shall, and shall cause its Representatives to, immediately cease and cause to be terminated any discussions or negotiations with any parties that may be ongoing with respect to any Acquisition Proposal as of the restrictions set forth date hereof. Both Parties agree that its obligation to hold a meeting of its shareholders or to otherwise submit this Agreement to its stockholders shall not be affected by the withholding, withdrawal, amendment, change or modification of its approval or recommendation in accordance with clause (A) above.
(c) The Parties will promptly (but in any event not later than 24 hours after its written receipt thereof) notify the other Party in writing of the existence of any proposal, discussion or negotiation received by either Party regarding any Acquisition Proposal, and each Party will promptly communicate to the other Party the identity of the party making such proposal or engaging in such discussion or negotiation and the material terms of any proposal, discussion or negotiation that it may receive regarding any Acquisition Proposal, but the Parties shall not be required to disclose the identity of the party making such proposal or engaging in such discussion or negotiation if prohibited from doing so pursuant to the terms of a written confidentiality agreement. Each Party will promptly provide to the other Party any information concerning the Party provided to any other Person in connection with any Acquisition Proposal which was not previously provided to any Party. The Parties will keep each other fully informed on a prompt basis of any discussions or negotiations relating to any Acquisition Proposal and of any amendments or proposed amendments to any of the material terms of any Acquisition Proposal.
(d) Each Party acknowledges that this Section 8.8 was a significant inducement for each Party to enter into this Agreement and the absence of such provision would have resulted in either (i) a material reduction in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed Merger Consideration to be paid to the security holders of FCB or (ii) a breach of failure to induce Flag to enter into this Section 5.4 by the CompanyAgreement.
Appears in 2 contracts
Sources: Merger Agreement (First Capital Bancorp, Inc.), Merger Agreement (Flag Financial Corp)
No Solicitation. (a) Subject to the provisions of Section 5.2(cFBR Asset shall not (whether directly or indirectly through advisors, agents or other intermediaries), from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant shall use its commercially reasonable efforts to Article VII, the Company and cause its subsidiaries will not, nor will they authorize or permit any of their respective officers, directors, affiliates employees, affiliates, agents and representatives, not to, encourage, solicit, participate in or employees initiate discussions or negotiations with, or provide any information or offer access to the properties, books or records of FBR Asset, to, any Person or group (other than FBR Group or any investment bankerdesignees of FBR Group) concerning any Competing Transaction. Notwithstanding the foregoing, attorney FBR Asset may furnish information and access, in each case only in response to an unsolicited written proposal that constitutes, or other advisor that the FBR Asset Board or representative retained by any of them FBR Asset Special Committee, after consultation with its financial advisors, determines is reasonably likely to lead to, directly a Superior Proposal (provided that FBR Asset shall first enter into a confidentiality agreement with such third party on terms no less favorable to FBR Asset than the terms of the confidentiality agreement between FBR Asset and FBR Group) and may thereafter participate in discussions and negotiate with the Person or indirectlygroup making such proposal. FBR Asset shall provide a copy of such written proposal (which shall identify the party making such proposal) and any amendments thereto to FBR Group within one business day after receipt thereof and, thereafter, shall keep FBR Group promptly advised of material developments with respect thereto; provided, however, that, nothing contained in this Section 4.3(a) shall prevent FBR Asset, the FBR Asset Board or the FBR Asset Special Committee from (i) solicittaking, initiateand disclosing to the FBR Asset Shareholders, encourage a position complying with Rule 14e-2(a) or induce Rule 14d-9 promulgated under the making, submission Exchange Act with respect to a Competing Transaction or announcement of any Acquisition Proposal (as hereinafter defined), (ii) participate making any disclosure to the FBR Asset Shareholders, if, in the good faith judgment of the FBR Asset Board or the FBR Asset Special Committee, after receiving advice of outside legal counsel, failure to disclose would be reasonably likely to constitute a breach of its fiduciary duties to FBR Asset or the FBR Asset Shareholders under applicable law (including a duty of candor) or otherwise be a violation of any discussions applicable law.
(b) Except as set forth in this Section 4.3(b), neither the FBR Asset Board nor any committee thereof shall (i) withdraw or negotiations regardingmodify its recommendation that the FBR Asset Shareholders approve this Agreement, or furnish (ii) approve or recommend, or authorize or cause FBR Asset to enter into any person agreement or letter of intent with respect to, any non-public information Competing Transaction (other than a confidentiality agreement on the terms described in Section 4.3(a)). Notwithstanding the foregoing, prior to the FBR Asset Special Meeting (as defined in Section 4.7(d) of this Agreement), after consultation with the FBR Asset Special Committee's outside legal counsel and independent financial advisor, the FBR Asset Special Committee may withdraw or modify its recommendation that the FBR Asset Shareholders approve this Agreement in connection with FBR Asset's receipt of a Superior Proposal, and the FBR Asset Board may withdraw or modify its recommendation that the FBR Asset Shareholders approve this Agreement, and may authorize and cause FBR Asset to enter into an agreement with respect to, or take any other action to facilitate any inquiries approve or the making of any proposal that constitutes or may reasonably be expected to lead torecommend, any Acquisition a Superior Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that FBR Asset shall, prior to or concurrently with the execution of any such agreement, terminate this Agreement pursuant to Section 6.1(c) and pay, or cause to be paid, to FBR Group the amounts required by Section 6.3(a).
(c) FBR Group shall not (whether directly or indirectly through advisors, agents or other intermediaries), and shall use its commercially reasonable efforts to cause its officers, directors, employees, affiliates, agents and representatives not to encourage, solicit, participate in or initiate discussions or negotiations with, or provide any information or offer access to the properties, books or records of FBR Group, to, any Person or group (other than FBR Asset or any designees of FBR Asset) concerning any Competing Transaction. Notwithstanding the foregoing, FBR Group may furnish information and access, in each case only in response to an unsolicited written proposal that constitutes, or that the FBR Group Board or FBR Group Special Committee, after consultation with its financial advisors, determines is reasonably likely to lead to, a Superior Proposal (provided that FBR Group shall first enter into a confidentiality agreement with such third party on terms no less favorable to FBR Group than the terms of the confidentiality agreement between FBR Asset and FBR Group) and may thereafter participate in discussions and negotiate with the Person or group making such proposal. FBR Group shall provide a copy of such written proposal (which shall identify the party making such proposal) and any amendments thereto to FBR Asset within one business day after receipt thereof and, thereafter, shall keep FBR Asset promptly advised of material developments with respect thereto; provided, however, that, nothing contained in this Section 5.4 4.3(c) shall prohibit prevent FBR Group, the ----------------- FBR Group Board of Directors of or the Company FBR Group Special Committee from (i) taking, and disclosing to the FBR Group Shareholders, a position complying with Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act with respect to a Competing Transaction or (ii) making any disclosure to the FBR Group Shareholders, if, in response the good faith judgment of the FBR Group Board or the FBR Group Special Committee, after receiving advice of outside legal counsel, failure to an unsoliciteddisclose would be reasonably likely to constitute a breach of its fiduciary duties to FBR Group or the FBR Group Shareholders under applicable law (including a duty of candor) or otherwise be a violation of any applicable law.
(d) Except as set forth in this Section 4.3(d), bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition neither the FBR Group Board nor any committee thereof shall (i) withdraw or modify its recommendation that the Board FBR Group Shareholders approve this Agreement or (ii) approve or recommend, or authorize or cause FBR Group to enter into any agreement or letter of Directors of intent with respect to, any Competing Transaction (other than a confidentiality agreement on the Company has reasonably concluded (based onterms described in Section 4.3(c)). Notwithstanding the foregoing, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information prior to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose FBR Group Special Meeting (as defined in Section 4.7(d) of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faiththis Agreement), after consultation with the FBR Group Special Committee's outside legal counsel and independent financial advisor, the FBR Group Special Committee may withdraw or modify its outside counselrecommendation that the FBR Group Shareholders approve this Agreement, and the FBR Group Board may withdraw or modify its recommendation that the FBR Group Shareholders approve this Agreement in connection with FBR Group's receipt of a Superior Proposal, and may authorize and cause FBR Group to enter into an agreement with 30 respect to, or approve or recommend, a Superior Proposal; provided, however, that its fiduciary obligations under applicable law require it FBR Group shall, prior to do so, (B) or concurrently with the earliest of (x) concurrently with furnishing any such nonpublic information to, the withdrawal or written questions to such party, the Company gives Parent written notice modification of the CompanyFBR Group Board's intention to furnish nonpublic information, or written questions to such party recommendation that the FBR Group Shareholders approve this Agreement and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure execution of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information agreement, terminate this Agreement pursuant to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to ParentSection 6.1(e) and (ii) in response to an unsolicitedpay, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed cause to be a breach paid, to FBR Asset the amounts required by Section 6.3(b).
(e) For purposes of this Section 5.4 by the Company.Agreement:
Appears in 2 contracts
Sources: Merger Agreement (FBR Asset Investment Corp/Va), Merger Agreement (Friedman Billings Ramsey Group Inc)
No Solicitation. (a) Subject to the provisions of Section 5.2(c), from and after From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement pursuant to Article VIISection 9.01, the Company and its subsidiaries agrees that it will not, nor and will they not authorize or permit any of their respective its Subsidiaries or any of its or its Subsidiaries’ directors, officers, directorsemployees, affiliates agents or employees or any representatives (including investment bankerbankers, attorney or other advisor or representative retained by any of them attorneys and accountants) to, directly or indirectly, (i) initiate, solicit, initiate, knowingly induce or knowingly encourage any inquiries regarding or induce the making, submission submission, announcement or announcement implementation of any Acquisition Proposal (as hereinafter defined)Proposal, (ii) participate engage in any discussions or negotiations regardingwith, or furnish to provide any person any non-public information with respect or data to, any Person relating to or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, to an Acquisition Proposal or otherwise knowingly facilitate any effort or attempt to make or implement an Acquisition Proposal, (iii) engage in discussions with any person with respect approve or recommend or propose publicly to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse approve or recommend any Acquisition Proposal or (viv) enter into any letter of intent agreement, arrangement or similar document or any contract, agreement or commitment understanding contemplating or otherwise relating to any Acquisition Transaction; providedProposal or requiring the Company to abandon, however, that nothing contained terminate or fail to consummate the Merger or any other transactions contemplated by this Agreement.
(b) Notwithstanding anything in this Section 5.4 shall prohibit Agreement to the ----------------- Board of Directors of the Company from (i) in response contrary, with respect to an unsolicited, any bona fide written Acquisition Proposal made after the date of this Agreement and not withdrawn which was not solicited, knowingly encouraged or knowingly induced after the date of this Agreement in breach of and did not otherwise result from a reputable breach of this Section 6.03, the Company or its Board of Directors may:
(i) to the extent applicable, comply with Rule 14e-2(a) and responsible third party for Rule 14d-9 promulgated under the Exchange Act, provided that such compliance shall not include any Change of Recommendation except upon compliance with Section 6.03(b)(iv) below;
(ii) file with the Commission a report on Form 8-K to report the execution of this Agreement and file a copy of this Agreement and the Voting Agreements as exhibits to such reports;
(iii) prior to obtaining the Required Company Vote, furnish information to, and negotiate or otherwise engage in discussions with, any Person who has delivered such Acquisition Proposal; provided that (A) no information may be furnished until the Company obtains a confidentiality agreement from such Person with terms no less favorable to the Company than those contained in the Confidentiality Agreement and (B) the Company shall not commence negotiations or discussions with or provide information to any such Person until (1) 48 hours after the Company shall have advised the Parent of its intention to take any such actions and shall have complied with Section 5.03(c) below and then (2) only if prior to taking any such action (x) the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice determines in good faith by affirmative vote of a financial advisor majority of all of its members, after consultation with a nationally recognized reputationinvestment banking firm (including, without limitation, Broadview), that such Acquisition Proposal is, or is reasonably expected likely to lead to to, a Superior Offer, furnishing nonpublic information Proposal (taking into account any adjustment to the party making terms and conditions of the Merger proposed by the Parent in response to such Acquisition Proposal) and (y) the Board of Directors of the Company determines in good faith by affirmative vote of a majority of its members, and submitting to the party making such Acquisition Proposal written questionsafter consultation with its outside legal counsel, the sole purpose that failure of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make take such action would be a determination whether breach of its fiduciary obligations to construe the Company’s stockholders under applicable Law; or
(iv) prior to obtaining the Required Company Vote, recommend such Acquisition Proposal to its stockholders or, in connection with an Acquisition Proposal, withhold, withdraw, amend or modify its recommendation in favor of this Agreement and the Merger (any such actions being referred to as “Change of Recommendation”) but only at a Superior Offertime that is after the fifth Business Day following the later of (1) the Parent’s receipt of written notice that the Company’s Board of Directors has made the determination required by clauses (x) and (y) below and is prepared to effect a Change of Recommendation and the manner it intends to do so and (2) the date the Parent is provided a copy of (and an accurate description of all material terms not covered thereby) such Acquisition Proposal, if prior to the extent that taking any such action (Ax) the Board of Directors of the Company concludes determines in good faithfaith by affirmative vote of a majority of all of its members, after consultation with its outside counsela nationally recognized investment banking firm (including, without limitation, Broadview) that its fiduciary obligations under applicable law require it such Acquisition Proposal is a Superior Proposal (taking into account any adjustment to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions the terms and conditions of the Merger proposed by the Parent in response to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party Acquisition Proposal) and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes determines in good faithfaith by affirmative vote of a majority of all of its members, after consultation with its outside legal counsel, that the failure of the Board of Directors of the Company to take such action would be a breach of its fiduciary obligations to the Company’s stockholders under applicable law require it Law. Nothing in this Section 6.03 will permit the Company to do so, terminate this Agreement except as specifically provided in Article IX hereof or effect any other obligation of the Company under this Agreement.
(Bc) (x) concurrently with entering into negotiations with such partyFrom and after the date of this Agreement, the Company gives shall as promptly as possible after receipt (and in any event within 24 hours) notify the Parent written in writing of any inquiries, proposals or offers, or any discussions or negotiations sought to be initiated or continued with, it or any of its Subsidiaries or its or their representatives relating to, constituting or which could reasonably be expected to lead to an Acquisition Proposal or any request for information relating to the Company or any of its Subsidiaries contemplating, relating to or which could reasonably be expected to lead to any Acquisition Proposal. Such notice will include the name of such Person and the material terms and conditions of any proposal, inquiry, offer or request, and the Company will as soon as possible provide such other details of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the CompanyAcquisition Proposal, the terms of which are at least as restrictive inquiry, offer or request as the terms contained in the Confidentiality AgreementParent may reasonably request. The Company will keep the Parent fully informed on a prompt basis (and in any event within 24 hours) of the status and terms, including any material changes or adjustments made to or proposed to be made to the terms, of any such inquiry, proposal, offer or request. If the Company or any of its subsidiaries Subsidiaries or its or their representatives receives a request for information from a Person who has made an unsolicited bona fide written Acquisition Proposal and the Company is permitted, as contemplated under Section 6.03(b), to provide such Person with information, the Company will provide to the Parent a copy of the confidentiality agreement with such Person promptly upon its execution and provide to the Parent a list of, and copies of, the information provided to such Person concurrently with delivery to such Person and immediately provide the Parent with access to all information to which such Person was provided access.
(d) The Company will immediately cease any and cause to be terminated all existing activities, discussions or negotiations by it and the other Persons referred to in Section 6.03(a) with any parties Person other than the Parent conducted heretofore with respect to any Acquisition Proposal. Without limiting The Company also agrees, if it has not already done so, to promptly request each Person, if any, that has heretofore executed a confidentiality agreement within the foregoing12 months prior to the date hereof in connection with any Acquisition Proposal to return or destroy all confidential information heretofore furnished to such Person by or on behalf of it or its Subsidiaries and take commercially reasonable actions necessary to enforce the provisions of any continuing confidentiality, it standstill or similar agreement. The Company will take such action as is understood that any violation necessary to inform promptly the Persons referred to in Section 6.03(a) of the restrictions set forth in the preceding two sentences by provisions of this Section 6.03 and will be responsible for any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 6.03 by the Companysuch Persons.
Appears in 2 contracts
Sources: Merger Agreement (Marimba Inc), Merger Agreement (BMC Software Inc)
No Solicitation. (a) Subject to the provisions of Section 5.2(c), from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company and its subsidiaries Subsidiaries and the officers, --------------- directors, employees, agents, representatives and advisors of Company and its Subsidiaries (collectively, Company's "Representatives") will not, nor will they authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them to, directly or indirectly, (i) take any action to solicit, initiate, encourage or induce the making, submission or announcement (including by way of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any person any furnishing non-public information with respect toor furnishing any information, other than as required by applicable law, rules or regulations, in a manner which could reasonably be expected to assist a third party in formulating a Takeover Proposal), take any other action designed to facilitate or agree to any inquiries Takeover Proposal (as defined in Section 7.3(f) hereof) or (ii) subject to the making next sentence, engage in negotiations with, or disclose any nonpublic information relating to Company or any of its Subsidiaries to any proposal person that constitutes has advised Company that it may be considering making, or may reasonably be expected to lead tothat has made, any Acquisition a Takeover Proposal, (iii) engage in discussions with any person or whose efforts to formulate a Takeover Proposal would be assisted thereby; provided, nothing herein shall prohibit Company's Board of Directors -------- from taking and disclosing to Company's stockholders a position with respect to any Acquisition Proposalan unsolicited tender offer pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act. Notwithstanding the immediately preceding sentence, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition if an unsolicited written Takeover Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors of the Company from (i) in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that be received by the Board of Directors of Company, then, to the extent the Board of Directors of Company has reasonably concluded believes in good faith (based onafter written advice from its financial advisor) that such Takeover Proposal would, among other thingsif consummated, the advice of result in a transaction more favorable to Company's stockholders from a financial advisor point of nationally recognized reputation)view than the transaction contemplated by this Agreement (any such more favorable Takeover Proposal being referred to in this Agreement as a "Superior Proposal") and the Board of Directors of Company determines in good faith after advice from outside legal counsel that it is necessary for the Board of Directors of Company to comply with its fiduciary duties to stockholders under applicable law, is reasonably expected to lead to a Superior Offer, furnishing nonpublic Company and its Representatives may furnish in connection therewith information to the party making such Acquisition Proposal, Superior Proposal and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes engage in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, and such actions shall not be considered a breach of this Section 4.4 or any other provisions of this Agreement; provided that in each such event Company notifies Parent of such -------- determination by the Company gives Board of Directors and provides Parent written notice with a true and complete copy of the Company's intention to enter into negotiations with such party and (y) the Company receives Superior Proposal received from such party an executed confidentiality agreement third party, and provides (or has provided) Parent with all documents containing customary limitations on the use and disclosure or referring to non-public information of all nonpublic written and oral information furnished Company that are supplied to such party on behalf of the Companythird party; provided, the terms of which are further, that Company provides such non-public information pursuant to -------- ------- a non-disclosure agreement at least as restrictive on such third party as the terms contained Confidentiality Agreement (as defined in Section 5.4) is on Parent; provided, -------- further, however, that Company shall not, and shall not permit any of its ------- officers, directors, employees or other representatives to agree to or endorse any Takeover Proposal or withdraw its recommendation of the Confidentiality AgreementMerger unless Company has provided Parent at least five (5) days prior notice thereof. The Company will promptly (and in any event within 24 hours) notify Parent after receipt of any Takeover Proposal or any notice that any person is considering making a Takeover Proposal or any request for non-public information relating to Company or any of its subsidiaries Subsidiaries or for access to the properties, books or records of Company or any of its Subsidiaries by any person that has advised Company that it may be considering making, or that has made, a Takeover Proposal, or whose efforts to formulate a Takeover Proposal would be assisted thereby (such notice to include the identity of such person or persons), and will keep Parent fully informed of the status and details of any such Takeover Proposal notice, request or any correspondence or communications related thereto and shall provide Parent with a true and complete copy of such Takeover Proposal notice or request or correspondence or communications related thereto, if it is in writing, or a complete written summary thereof, if it is not in writing. Company shall immediately cease any and cause to be terminated all existing activities, discussions discussion or negotiations with any parties persons conducted heretofore with respect to any Acquisition a Takeover Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Company.
Appears in 2 contracts
Sources: Merger Agreement (E Trade Group Inc), Merger Agreement (E Trade Group Inc)
No Solicitation. (a) Subject to The Stockholder hereby agrees that during the provisions term of this Agreement, except as permitted by Section 5.2(c4.3(b), from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company and its subsidiaries will it shall not, nor will they authorize or permit and shall use its reasonable best efforts to ensure that any of their respective officers, directors, affiliates its Affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them toRepresentatives do not, directly or indirectly, (i) initiate, solicit, initiate, publicly propose or encourage or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined)a Takeover Proposal, (ii) participate or engage in any discussions or negotiations regarding, or furnish with respect to any person Takeover Proposal or (iii) furnish any non-public information with respect to, regarding the Company or take the Merger to any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition TransactionPerson; provided, however, that nothing contained in this Section 5.4 4.3(a) shall prohibit prevent the ----------------- Board of Directors of Stockholder, in the Company from (i) in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal Stockholder’s capacity as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, director or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf executive officer of the Company, from engaging in any activity permitted pursuant to Section 5.3 of the terms of which are at least as restrictive as the terms contained in the Confidentiality Merger Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished no action by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative Affiliates in compliance with Section 5.3 of the Company or any of its subsidiaries Merger Agreement shall be deemed to be a breach violation by Stockholder of this Section 5.4 4.3.
(b) Notwithstanding anything in this Agreement to the contrary, in the event the Company Board exercises its rights under Section 5.3 of the Merger Agreement to (i) furnish information with respect to the Company and its Subsidiaries to any Person, and (ii) participate, engage or assist in any manner in discussions or negotiations with any Person, in each case, in compliance with Section 5.3 of the Merger Agreement, then (x) the Stockholder may likewise furnish any such information to such Person and participate, engage or assist in any manner in such discussions or negotiations with such Person, provided, that any action taken by the Stockholder shall be taken only in coordination with the Company Board, and (y) in connection with the Company’s termination of the Merger Agreement pursuant to Section 5.3(d) of the Merger Agreement in order to enter into a transaction which constitutes a Superior Proposal, Stockholder shall be entitled to enter into a voting or other support agreement with the Person making the Superior Proposal, provided, that the effectiveness of such agreement shall be conditioned upon the termination of the Merger Agreement in compliance with the Article VII thereof.
Appears in 2 contracts
Sources: Tender and Support Agreement (Emageon Inc), Tender and Support Agreement (AMICAS, Inc.)
No Solicitation. (a) Subject to Until the provisions earlier of Section 5.2(c), from (i) the Closing and after (ii) the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VIIits terms, the Company and its subsidiaries will Seller shall not, nor will they and shall not authorize or permit cause any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them Person to, directly or indirectly, (i) take any action to solicit, initiate, seek, knowingly encourage or induce the makingrespond to (other than clarifying a third party’s communication or informing a third party that Seller cannot enter into discussions or furnish information) any inquiry, submission proposal or announcement of offer from, furnish any Acquisition Proposal (as hereinafter defined)confidential information to, (ii) or participate in any discussions or negotiations regardingwith, any third party (other than Purchaser or an affiliate thereof designated by Purchaser) regarding any acquisition of, any merger or consolidation with or involving, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making acquisition of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document all or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors material portion of the Company from (i) in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board assets of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors Seller (which transaction would include any material portion of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, assets of the Business) or (B) the Business or any material part thereof (a “Competing Transaction”); provided that any acquisition of Seller that contemplates a prior or contemporaneous disposition of the Business to Purchaser shall not be deemed to be a Competing Transaction. If at any time prior to the earlier of (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party Closing and (y) the Company receives from termination of this Agreement pursuant to its terms, Seller is approached in any manner by a third party concerning a Competing Transaction (a “Competing Party”), Seller shall promptly inform Purchaser regarding such party an executed confidentiality agreement containing customary limitations on contact and furnish Purchaser with a copy of any inquiry or proposal, or, if not in writing, a description thereof, including the use name of such Competing Party, and disclosure of all nonpublic written and oral information furnished to such party on behalf Seller shall keep Purchaser informed of the Companystatus and details of any future notices, requests, correspondence or communications related thereto.
(b) Until the terms earlier of which are at least as restrictive as (i) the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) Closing and (ii) in response the termination of this Agreement pursuant to an unsolicitedits terms, bona fide written Acquisition Proposal Purchaser shall not, and shall not authorize or cause any other Person to, take any action to solicit, initiate, seek, knowingly encourage or respond to (other than clarifying a third party’s communication or informing a third party that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to Purchaser cannot enter into negotiations with such party and (ydiscussions or furnish information) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral any inquiry, proposal or offer from, furnish any confidential information furnished to such party on behalf of the Companyto, the terms of which are at least as restrictive as the terms contained or participate in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with, any third party regarding any acquisition of Purchaser or any material part thereof, any merger or consolidation with or involving Purchaser which would result in a change of control of Purchaser (as determined under Rule 4350(i) of the NASDAQ Marketplace Rules), or any parties conducted heretofore with respect acquisition of all or any material portion of the assets of Purchaser; provided that the foregoing shall not apply to any Acquisition Proposal. Without limiting the foregoingdiscussions or negotiations, it is understood that any not in violation of the restrictions set forth Purchaser’s confidentiality obligations, that Purchaser or its representatives may have with potential investors for a non-controlling interest in the preceding two sentences by any officer, director or employee Purchaser which would not constitute a change of control of Purchaser (as determined under Rule 4350(i) of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the CompanyNASDAQ Marketplace Rules).
Appears in 2 contracts
Sources: Asset Purchase Agreement (Smith Micro Software Inc), Asset Purchase Agreement (Pc Tel Inc)
No Solicitation. (a) Subject to the provisions of Section 5.2(c), from and after From the date hereof until the earlier of this Agreement until the Effective Time or the termination of this Agreement pursuant to Article VIIAgreement, the Company shall not and its subsidiaries will not, nor will they not authorize or permit any of their respective its officers, directors, affiliates employees, financial advisors, representatives or employees or any investment banker, attorney or other advisor or representative retained by any of them to, directly or indirectly, agents to (i) solicit, seek, initiate, or encourage any inquiries or induce proposals that constitute, or would be reasonably likely to lead to, a proposal or offer for a merger, consolidation, business combination, sale of substantial assets of Company and its Subsidiaries, taken as whole (other than the makingsale of inventory or obsolete property in the ordinary course of business), submission sale of shares of its capital stock (including without limitation by way of a tender offer) or announcement similar transaction involving such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement (any Acquisition Proposal (of the foregoing inquiries or proposals being referred to in this Agreement as hereinafter definedan "ACQUISITION PROPOSAL"), (ii) participate engage in negotiations or discussions with any discussions Person other than Parent or negotiations regardingits affiliates (a "THIRD PARTY") concerning, or furnish to any person provide any non-public information with respect to, or take to any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead Person relating to, any Acquisition Proposal, or (iii) engage in discussions with any person with respect agree to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contractProposal; PROVIDED, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, howeverHOWEVER, that nothing contained in this Section 5.4 Agreement shall prohibit the ----------------- Board of Directors of prevent Company or the Company Board or the Special Committee from (iA) furnishing nonpublic information to, or entering into discussions or negotiations with, any Person in response to connection with an unsolicited, unsolicited bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information by such Person or modifying or withdrawing its recommendation with respect to the party making such transactions contemplated hereby or recommending an unsolicited bona fide written Acquisition Proposal, and submitting Proposal to the party making such Acquisition Proposal written questionsShareholders, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, if and only to the extent that (A1) the Company Board of Directors of or the Company concludes Special Committee believes in good faith, 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 counsel, legal counsel that such action is required for the Company Board or the Special Committee to comply with its fiduciary obligations duties to the Shareholders under applicable law require it and (2) prior to do so, (B) (x) concurrently with furnishing any such nonpublic non-public information to, or written questions to entering into discussions or negotiations with, such partyPerson, the Company gives Parent written notice of Board or the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company Special Committee receives from such party Person an executed confidentiality and standstill agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished with terms no less favorable to such party on behalf of the Company, the terms of which are at least as restrictive as the terms Company than those contained in the Confidentiality Agreement, dated April 12, 1999 between Parent and Company (Cthe "CONFIDENTIALITY AGREEMENT"); or (B) contemporaneously complying with furnishing 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.
(b) Company shall notify Parent immediately after receipt by Company (or its advisors) of any Acquisition Proposal or any request for nonpublic information in connection with an Acquisition Proposal or for access to its properties, books or records by any Person that informs Company that it is considering making, or has made, an Acquisition Proposal. Such notice shall be made orally and in writing and shall indicate in reasonable detail the terms and conditions of such proposal, inquiry or contact (including, without limitation, the identity of the Person making the Acquisition Proposal). Company shall continue to keep Parent informed, on a current basis, of the status of any such nonpublic information discussions or negotiations and the terms being discussed or negotiated.
(c) Neither the Company Board nor the Special Committee shall withdraw, modify or change, or propose to such partywithdraw, modify or change, in a manner adverse to Parent, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished approval or recommendation by the Company to Parent) and (ii) in response to an unsolicitedBoard or the Special Committee, bona fide written Acquisition Proposal that constitutes a Superior as the case may be, of the Offer, engaging in negotiations with this Agreement or the party making such Acquisition Proposal to the extent that (A) the Board of Directors of Merger unless the Company concludes Board or the Special Committee, as the case may be, determines, in good faith, after consultation with the exercise of its outside counselfiduciary duties, that its fiduciary obligations under applicable law require it is necessary to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms . Nothing contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 6.3(c) will prohibit Company from taking and disclosing to the Shareholders a position contemplated by Rule 14e-2 promulgated under the CompanyExchange Act.
Appears in 2 contracts
Sources: Merger Agreement (Funco Inc), Merger Agreement (Electronics Boutique Holdings Corp)
No Solicitation. (a) The Company and its Subsidiaries shall immediately cease any and all existing discussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal and terminate such Persons’ access to any data room containing the Company’s confidential information, and shall as promptly as practicable (and in any event within three (3) Business Days) request the return from all such Persons or the destruction by such Persons of all copies of confidential information previously provided to such Persons by the Company, its Subsidiaries or Representatives.
(b) Subject to the provisions of Section 5.2(c), from at all times during the period commencing with the execution and after the date delivery of this Agreement and continuing until the Effective Time or earlier to occur of (A) the termination of this Agreement pursuant to Article VIIVIII and (B) the Effective Time, the Company and its subsidiaries will Subsidiaries shall not, nor will shall they authorize or knowingly permit any of their respective officers, directors, affiliates officers or employees other employees, controlled affiliates, or any investment banker, attorney attorney, accountant or other advisor authorized agent or representative retained by any of them (collectively, “Representatives”) to, directly or indirectly, (i) solicit, initiate, encourage initiate or induce the making, submission or announcement of any of, or knowingly encourage, facilitate or assist, an Acquisition Proposal (as hereinafter defined)Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any person Person (other than Parent, Acquisition Sub or any designees of Parent or Acquisition Sub) any non-public information with respect torelating to the Company or any of its Subsidiaries, or take afford to any Person (other action than Parent, Acquisition Sub or any designees of Parent or Acquisition Sub) access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries, in any such case with the intent to induce the making, submission or announcement of, or the intent to encourage, facilitate or assist, an Acquisition Proposal or any inquiries or the making of any proposal that constitutes or may would reasonably be expected to lead to, any to an Acquisition Proposal, (iii) participate or engage in discussions or negotiations with any person Person with respect to any an Acquisition Proposal, except as to the existence of these provisions, or (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment Contract contemplating or otherwise relating to any an Acquisition Transaction; provided, however, that nothing contained Transaction (other than an Acceptable Confidentiality Agreement).
(c) Notwithstanding anything to the contrary set forth in this Section 5.4 shall prohibit 5.2 or elsewhere in this Agreement, prior to the ----------------- Board of Directors receipt of the Requisite Stockholder Approval, if the Company receives from (i) in response to an unsolicitedany Person a bona fide, bona fide written and unsolicited Acquisition Proposal from not involving a reputable and responsible third party for a Company Acquisition breach of Section 5.2(b) that the Company Board of Directors of determines in good faith (after consultation with the Company has reasonably concluded (based on, among other things, the advice of a Company’s financial advisor of nationally recognized reputation), and outside legal counsel) either constitutes or is reasonably expected to lead to a Superior OfferProposal, furnishing nonpublic the Company Board may, directly or indirectly through the Company’s Representatives, (i) participate or engage in discussions or negotiations with such Person and/or (ii) furnish to such Person any non-public information relating to the party making Company or any of its Subsidiaries and/or afford such Acquisition Proposal, and submitting Person access to the party making such Acquisition Proposal written questionsbusiness, properties, assets, books, records or other non-public information, or the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors personnel, of the Company or any of its Subsidiaries, in each case under this clause (ii) pursuant to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Acceptable Confidentiality Agreement, and (C) provided that contemporaneously with furnishing any such nonpublic non-public information to such partyPerson, the Company furnishes such nonpublic non-public information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent; provided, however, that in the case of each action taken pursuant to the preceding clauses (i) and or (ii) in response ), prior to an unsolicitedtaking such action, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Company Board of Directors of the Company concludes and/or any authorized committee thereof determines in good faith, faith (after consultation with its outside legal counsel, ) that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary obligations duties to the Company Stockholders under applicable law require it to do soDelaware Law, and (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the identity of such Person and the material terms of such Acquisition Proposal (unless such Acquisition Proposal is in written form, in which case the Company shall give Parent a copy thereof) and of the Company's ’s intention to enter into participate or engage in discussions or negotiations with, or furnish non-public information to, such Person (and shall include with such party and (y) the Company receives notice copies of any written materials received from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party or on behalf of the Company, the terms of which are at least as restrictive as the terms contained such Person in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions connection with or negotiations with any parties conducted heretofore with respect relating to any such Acquisition Proposal). Without limiting the foregoing, it is understood that any violation of the foregoing restrictions set forth in by the preceding two sentences by any officer, director Company’s Subsidiaries or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries Representatives shall be deemed to be a breach of this Section 5.4 5.2 by the Company.
(d) Notwithstanding anything to the contrary set forth in this Section 5.2 or elsewhere in this Agreement, prior to the Effective Time, neither the Company nor any of its Subsidiaries shall terminate, amend, modify or waive any rights under, or release any Person (other than Parent and Acquisition Sub) from, any “standstill” or other similar agreement between the Company or any of its Subsidiaries, on the one hand, and such Person, on the other, unless the Company Board and/or any authorized committee thereof determines in good faith (after consultation with its outside legal counsel) that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties to the Company Stockholders under Delaware Law.
(e) In addition to the obligations of the Company set forth in Section 5.2(b), the Company shall promptly (and in any event within 48 hours) notify Parent of any receipt by the Company or any of its Representatives of (i) any Acquisition Proposal, (ii) any request for information that would reasonably be expected to lead to an Acquisition Proposal, or (iii) any inquiry with respect to, or which would reasonably be expected to lead to, any Acquisition Proposal, including with such notice the material terms and conditions of such Acquisition Proposal, request or inquiry, and the identity of the Person or group making any such Acquisition Proposal, request or inquiry (and shall include with such notice copies of any written materials received from or on behalf of such Person in connection with or relating to such Acquisition Proposal (including any financial terms)). The Company shall keep Parent reasonably informed of the status and material terms of any such Acquisition Proposal, request or inquiry.
Appears in 2 contracts
Sources: Merger Agreement (Cypress Semiconductor Corp /De/), Merger Agreement (Cypress Semiconductor Corp /De/)
No Solicitation. (a) Subject The Company agrees that it shall --------------- immediately cease and cause to the provisions of be terminated all existing discussions, negotiations and communications with any Persons with respect to any Acquisition Proposal. Except as provided in Section 5.2(c5.3(b), from and after the date of this Agreement until the Effective Time or earlier of termination of this Agreement pursuant to Article VIIor the Effective Time, the Company shall not and its subsidiaries will not, nor will they shall not authorize or permit any of their respective its officers, directors, affiliates or employees or any employees, investment bankerbankers, attorney attorneys, accountants or other advisor or representative retained by any of them toagents (collectively, "Representatives") to directly or indirectly, indirectly (i) solicit, initiate, encourage --------------- solicit or induce knowingly encourage, or knowingly take any action to facilitate the makingmaking of, submission any offer or announcement of proposal which constitutes or which may be reasonably likely to lead to any third-party Acquisition Proposal (as hereinafter defined), or (ii) participate in enter into any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person agreement with respect to any Acquisition Proposal, except as to or (iii) in the existence event of these provisions, (iv) approve, endorse or recommend any an unsolicited Acquisition Proposal for the Company, engage in negotiations or discussions with, or provide any information or data to, any Person (v) enter into any letter of intent or similar document other than Parent or any contract, agreement of its affiliates or commitment contemplating or otherwise representatives) relating to any Acquisition Transaction; providedProposal. Notwithstanding the foregoing, however, that nothing contained in this Section 5.4 5.3 shall prohibit the ----------------- Company or the Company Board of Directors from (x) in the event of an unsolicited Acquisition Proposal, requesting from the third party such information as may be reasonably necessary for the Company from (i) in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications inform themselves as to the material terms of such Acquisition Proposal so for the sole purpose of determining whether such Acquisition Proposal constitutes a Superior Proposal, provided, that (i) the Company Board of Directors shall have determined, in good faith after being advised by outside legal counsel, that taking such action with respect to an Acquisition Proposal from such third party is necessary in order for the Company Board of Directors to discharge its fiduciary duties under applicable law and (ii) upon receipt of such information requested from the third party, neither the Company nor any of its Representatives shall be permitted to engage in any further discussion or negotiations with any such third party that would otherwise violate paragraph (a) of this Section 5.3, (y) taking (and disclosing to the Company's stockholders) its position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 under the Exchange Act or (z) making such disclosure to the Company's stockholders as in the good-faith judgment of the Company Board of Directors, after receipt of advice from outside legal counsel to enable the Company, that such disclosure is necessary for the Company Board of Directors to comply with its fiduciary duties under applicable law.
(b) Notwithstanding the foregoing, prior to the acceptance of Shares pursuant to the Offer, the Company may furnish information concerning its business, properties or assets to any Person pursuant to a confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement (other than with respect to any standstill provision contained therein), dated May 29, 2001 entered into between Parent and the Company (the "Confidentiality Agreement") and may negotiate and participate ------------------------- in discussions and negotiations with such Person concerning an Acquisition Proposal if, but only if, (x) such Acquisition Proposal is reasonably likely to be consummated (taking into account the legal aspects of the proposal, the Person making the Acquisition Proposal and approvals required in connection therewith); (y) such entity or group has on an unsolicited basis, and in the absence of any violation of this Section 5.3 by the Company, submitted a bona fide, fully financed, written proposal to the Company relating to any such transaction which the Board of Directors determines in good faith, after receiving advice from the Company's financial advisors, is more favorable than the Offer to the Company's stockholders from a financial point of view, and (z) in the good faith opinion of the Company Board of Directors, after consultation with outside legal counsel to the Company, providing such information or access or engaging in such discussions or negotiations is in the best interests of the Company and its stockholders and necessary in order for the Company Board of Directors to discharge its fiduciary duties to the Company's stockholders under applicable law (an Acquisition Proposal which satisfies clauses (x), (y) and (z) being referred to herein as a "Superior Proposal"). The Company shall promptly, ----------------- and in any event within two business days following receipt of a Superior Proposal and prior to providing any such party with any material non-public information, notify Parent of the receipt of the same. The Company shall promptly provide to Parent any material non-public information regarding the Company provided to any other party which was not previously provided to Parent, such additional information to be provided no later than the date of provision of such information to such other party.
(c) Except as set forth herein, neither the Company Board of Directors nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to the Transactions, to Parent or to the Purchaser, the approval or recommendation by the Company Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to this Agreement or the extent that (A) the Board of Directors of the Company concludes in good faithMerger, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response approve or recommend or propose to an unsolicitedapprove or recommend, bona fide written any Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that or (Aiii) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality any agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting Notwithstanding the foregoing, it is understood that any violation prior to the time of acceptance for payment of Shares in the Offer, the Company Board of Directors may (subject to the terms of this and the following sentence) withdraw or modify its approval or recommendation of the restrictions set forth Offer, this Agreement or the Merger, approve or recommend a Superior Proposal, or enter into an agreement with respect to a Superior Proposal (an "Acquisition Agreement"), in each case at any time after --------------------- the third business day following the Company's delivery to Parent of written notice advising Parent that the Company Board of Directors has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the Person making such Superior Proposal; provided, -------- however, that the Company shall not enter into an agreement with respect to a ------- Superior Proposal unless the Company complies with Section 5.3(d).
(d) The Company may terminate this Agreement and enter into an Acquisition Agreement with respect to such Superior Proposal, provided that, -------- prior to any such termination, (i) the Company has provided Parent written notice that it intends to terminate this Agreement pursuant to this Section 5.3(d), identifying the Superior Proposal then determined to be more favorable and the parties thereto and delivering a copy of the Acquisition Agreement for such Superior Proposal in the preceding two sentences by any officerform to be entered into, director or employee (ii) within a period of three business days following the delivery of the notice referred to in clause (i) above, Parent does not propose adjustments in the terms and conditions of this Agreement and the Company or any shall have caused its financial and legal advisors to negotiate with Parent in good faith such proposed adjustments in the terms and conditions of this Agreement which the Company Board of Directors determines in its good faith judgment (after receiving the advice of its subsidiaries or any investment bankerfinancial advisor) to be as favorable to the Company's stockholders as such Superior Proposal, attorney or other advisor or representative and (iii) at least three full business days after the Company has provided the notice referred to in clause (i) above, the Company delivers to Parent (A) a written notice of termination of this Agreement pursuant to this Section 5.3(d), and (B) a wire transfer of immediately available funds in the amount of the Company or any of its subsidiaries shall be deemed to be a breach of this Termination Fee (as defined in Section 5.4 by the Company8.2(b)).
Appears in 2 contracts
Sources: Merger Agreement (Lee Sara Corp), Merger Agreement (Lee Sara Corp)
No Solicitation. (a) Subject to the provisions The Company shall not, shall cause each of Section 5.2(c), from its Subsidiaries and after the date each officer and director of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company and its subsidiaries will not, nor will they authorize or permit of any of their respective officersits Subsidiaries not to, directors, affiliates or employees and shall use commercially reasonable efforts to cause any other Representative of the Company or any investment banker, attorney or other advisor or representative retained by any of them its Subsidiaries not to, directly or indirectly, (i) solicit, initiate, initiate or knowingly take any action to facilitate or encourage or induce the making, submission of or announcement of any Acquisition Proposal (as hereinafter defined)Proposal, (ii) participate or engage in any discussions or negotiations regarding, or furnish to any person Third Party any non-public information with respect to, or knowingly take any other action to facilitate any inquiries or the making of any proposal that constitutes constitutes, or may would reasonably be expected to lead to, any Acquisition Proposal, Proposal or (iii) engage in discussions with release any person with respect (A) Third Party from any standstill agreement or (B) Third Party that would reasonably be expected to make an Acquisition Proposal from any confidentiality agreement to which the Company is a party, or fail to reasonably enforce or grant any material waiver, request or consent to any Acquisition ProposalProposal under, except as to the existence of these provisionsany such agreement. The Company shall, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 and shall prohibit the ----------------- Board of Directors cause each Subsidiary of the Company from (i) in response to an unsolicitedand the Company’s and each such Subsidiary’s respective Representatives to, bona fide written Acquisition Proposal from a reputable immediately cease and responsible third party for a Company Acquisition that terminate any existing solicitation, encouragement, activity, discussion or negotiation heretofore conducted by the Board of Directors Company, any Subsidiary of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore their respective Representatives with respect to any Acquisition Proposal. Without limiting The Company shall promptly after the foregoingdate of this Agreement instruct each Third Party which has heretofore executed a confidentiality agreement relating to any Acquisition Proposal with or for the benefit of the Company to promptly return or destroy all information, it documents and materials relating to an Acquisition Proposal or to the Company or its businesses, operations or affairs heretofore furnished by the Company or any of its Representatives to such Third Party or any of its Representatives in accordance with the terms of any confidentiality agreement with such Third Party. It is understood that any violation of the restrictions set forth in the preceding two sentences of this Section 5.3(a) by any officer, director or employee Representative of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative Subsidiary of the Company or any of its subsidiaries shall be deemed a breach of this Section 5.3(a) by the Company.
(b) Notwithstanding the restrictions set forth in Section 5.3(a), if, prior to the receipt of the Requisite Stockholder Approval, in response to an unsolicited written Acquisition Proposal received after the date of this Agreement from a Third Party that has not resulted from a material breach or violation of Section 5.3(a) and that the Company Board in good faith determines (after consultation with its financial advisor and outside legal counsel) is, or would reasonably be expected to result in or lead to, a Superior Proposal and that the failure to take such action would reasonably be expected to result in a breach of the fiduciary duties of the Company Board to the Company’s stockholders under applicable Law, the Company and its Representatives may, subject to the Company giving Parent at least twenty-four hours prior written notice (which notice shall contain the identity of the Third Party making such Acquisition Proposal, a copy of the Acquisition Proposal if it is in writing or otherwise a description of the material terms and conditions pertinent thereto and a statement to the effect that the Company Board has made the determination required by this Section 5.3(b) in respect thereof and the Company intends to furnish non-public information to, or enter into discussions or negotiations with, such Third Party making such Acquisition Proposal), (i) furnish information with respect to the Company and each Subsidiary of the Company to the Third Party making such Acquisition Proposal and its Representatives pursuant to a confidentiality agreement containing terms no less favorable to the Company than the terms of the Confidentiality Agreement (except that such confidentiality agreement (A) shall contain additional provisions that expressly permit the Company to comply with the provisions of this Section 5.3 and (B) need not contain the “standstill” provision set forth in Section 16 of the Confidentiality Agreement), and (ii) engage in such negotiations or discussions with the Third Party that made such Acquisition Proposal as the Company Board shall determine. To the extent any information furnished to a Third Party pursuant to this Section 5.3(b) was not previously furnished or made available to Parent, the Company shall furnish or make available a copy of such information to Parent promptly and in any event within twenty-four hours from the time such information is furnished to the Third Party. The Company shall provide Parent with a correct and complete copy of any confidentiality agreement entered into pursuant to this paragraph within twenty-four hours of the execution thereof.
(c) Except as otherwise permitted by Section 5.3(d) or Section 5.3(e), neither the Company Board nor any committee thereof shall (i) fail to make the Company Board Recommendation to holders of Company Common Stock, (ii) withdraw, qualify, modify, change or amend (or propose publicly to withdraw, qualify, modify, change or amend) in any manner adverse to Parent or Merger Sub, the Company Board Recommendation or (iii) approve or recommend or propose publicly to approve or recommend, any Acquisition Proposal (it being understood that, only with respect to a tender offer or exchange offer, taking a neutral position or no position (other than in a communication made in compliance with Rule 14d-9(f) promulgated under the Exchange Act) with respect to any Acquisition Proposal shall be considered a breach of this clause (iii)), (any of the foregoing in clause (i), (ii) or (iii), a “Company Board Recommendation Change”) or (iv) authorize the Company to, and the Company shall not, enter into any agreement, agreement-in-principle, memorandum of understanding or letter of intent with respect to, or accept, any Acquisition Proposal (other than a confidentiality agreement pursuant to and in accordance with Section 5.3(b)).
(d) Notwithstanding the provisions of this Section 5.3, at any time prior to the Requisite Stockholder Approval, if the Company Board has received an Acquisition Proposal (that has not been withdrawn) that constitutes a Superior Proposal, the Company Board may make a Company Board Recommendation Change if prior to the Company Board taking any such action:
(i) the Company Board in good faith determines (after consultation with its outside legal counsel) that the failure to take such action would reasonably be expected to result in a breach of the fiduciary duties of the Company Board under applicable Law;
(ii) the Company shall have (A) provided to Parent a written notice, which notice shall (x) state that the Company has received an Acquisition Proposal which the Company Board has determined is a Superior Proposal and that the Company Board intends to take such action and the manner in which it intends or may intend to do so and (y) include the identity of the Third Party making such Superior Proposal, the most current written draft agreement relating to the transaction that constitutes such Superior Proposal and all related transaction agreements to which the Company would be a party, and (B) given such notice to Parent at least four Business Days prior to taking any such action (it being understood that any material amendment to the terms of such Superior Proposal shall require a new notice and a new four Business Day period) and given Parent during such four Business Day period the opportunity to meet or negotiate with the Company Board and its outside legal counsel, as would permit the Company not to effect a Company Board Recommendation Change or take such action pursuant to Section 7.1(d)(i) in response to such a Superior Proposal;
(iii) if Parent shall have delivered to the Company, within four Business Days after receipt by Parent of such notice, a written proposal capable of being accepted to amend the terms contemplated by this Agreement, the Company Board shall have in good faith determined (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that the failure to make a Company Board Recommendation Change would reasonably be expected to result in a breach of its fiduciary duties under applicable Law; and
(iv) the Company concurrently terminates this Agreement pursuant to Section 7.1(d)(i) and enters into a binding written agreement concerning a transaction that constituted such Superior Proposal.
(e) The Company Board may also make a Company Board Recommendation Change at any time prior to the receipt of the Requisite Stockholder Approval in the absence of a Superior Proposal if a material fact, event, change, development or set of circumstances that was not known by the Company Board as of or at any time prior to the date of this Agreement (and not relating in any way to any Acquisition Proposal) (such material fact, event, change, development or set of circumstances, an “Intervening Event”) shall have occurred and be continuing and prior to effecting such Company Board Recommendation Change:
(i) the Company Board in good faith determines (after consultation with its outside legal counsel) that, in light of such Intervening Event, the failure to take such action would reasonably be expected to result in a breach of the fiduciary duties of the Company Board under applicable Law;
(ii) the Company Board shall have (A) provided to Parent a written notice, which notice shall (x) state that an Intervening Event has occurred and that the Company Board intends to take such action and (y) describe the Intervening Event in reasonable detail and (B) given such notice to Parent at least four Business Days prior to taking any such action and given Parent during such four Business Day period the opportunity to meet or negotiate with the Company Board and its outside legal counsel as would permit the Company not to effect a Company Board Recommendation Change; and
(iii) if Parent shall have delivered to the Company a written proposal capable of being accepted to amend the terms contemplated by this Agreement, within four Business Days after receipt of such notice, the Company Board shall have in good faith determined (after consultation with outside legal counsel), after considering the terms of such proposal by Parent, that the failure to effect a Company Board Recommendation Change would reasonably be expected to result in a breach of its fiduciary duties under applicable Law.
(f) Nothing contained in this Section 5.3 shall prohibit the Company or the Company Board from (i) taking and disclosing to the holders of Company Common Stock 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 and (ii) making any disclosure to the holders of Company Common Stock if the Company Board in good faith determines (after consultation with its outside legal counsel) that the failure to make such disclosure would reasonably be expected to be a breach of its fiduciary duties under applicable Law; provided, however, that in no event shall this Section 5.4 5.3(f) affect the obligations of the Company set forth in Section 5.3.
(g) In addition to the other obligations of the Company set forth in this Section 5.3, the Company shall promptly, and in any case within twenty-four hours of its receipt, advise Parent orally and in writing of any request for information with respect to any Acquisition Proposal, or any inquiry with respect to or which could reasonably be expected to result in an Acquisition Proposal, and the material terms and conditions of such request, Acquisition Proposal or inquiry, including the identity of the Third Party or group making any such Acquisition Proposal and a copy of all written materials provided in connection with such Acquisition Proposal. The Company shall keep Parent informed on a reasonably current basis of the status and material terms and conditions (including all amendments or proposed amendments) of any such Acquisition Proposal or inquiry and shall promptly provide to Parent a copy of all written materials subsequently provided to or by the CompanyCompany in connection with such Acquisition Proposal.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Conexant Systems Inc), Merger Agreement (Standard Microsystems Corp)
No Solicitation. (a) Subject to the provisions of Section 5.2(c), from From and after the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Article VIIits terms, the Company and its subsidiaries will Seller shall not, nor will they authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them to, directly or indirectly, through any officer, director, employee, financial advisor, representative or agent of such party (i) solicit, initiate, or encourage or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal proposals that constitutes constitute, or may could reasonably be expected to lead to, a proposal or offer for a merger, consolidation, business combination, sale of substantial assets (other than the sale of Seller's products or used equipment in the ordinary course of business), sale of shares of capital stock (including without limitation by way of a tender offer but excluding sales pursuant to existing employee and director stock plans) or similar transaction involving Seller or any 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) engage in negotiations or discussions concerning, or provide any non-public information to any person or entity relating to, any Acquisition Proposal, or (iii) engage in discussions with any person with respect agree to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition TransactionProposal; provided, however, that nothing contained in this Section 5.4 Agreement shall prohibit the ----------------- prevent Seller or its Board of Directors of the Company Directors, from (iA) furnishing non-public information to, or entering into discussions or negotiations with, any person or entity in response to connection with an unsolicited, unsolicited bona fide written Acquisition Proposal from a reputable and responsible third party for a Company by such person or entity or agreeing to (with the terms of any such agreement being subject to termination of this Agreement in accordance with Article VIII) or recommending an unsolicited bona fide written Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information Proposal to the party making such Acquisition Proposalstockholders of Seller, if and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, only to the extent that (A1) the Board of Directors of the Company concludes Seller believes in good faith, faith (after consultation with its financial advisor) that such Acquisition Proposal is reasonably capable of being completed on the terms proposed and would, if consummated, result in a transaction more favorable than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being referred to in this Agreement as a "Superior Proposal") and Seller's Board of Directors determines in good faith after consultation with outside counsel, legal counsel that such action is necessary for such Board of Directors to comply with its fiduciary obligations duties to stockholders under applicable law require it and (2) prior to do so, (B) (x) concurrently with furnishing any such nonpublic non-public information to, or written questions to entering into discussions or negotiations with, such partyperson or entity, the Company gives Parent written notice such Board of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company Directors receives from such party person or entity an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished with terms no less favorable to such party on behalf of the Company, the terms of which are at least as restrictive as the terms than those contained in the Confidentiality Agreement, ; or (B) complying with Rule 14d-9 and (C) contemporaneously 14e-2 promulgated under the Exchange Act with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response regard to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offeror making any disclosure to Seller's stockholders if, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the good faith judgment of Seller's Board of Directors of the Company concludes in good faithDirectors, after consultation with its outside legal counsel, such disclosure is required by applicable law.
(b) Seller shall notify Buyer within one day after receipt by Seller (or its advisors) of any Acquisition Proposal or any request for nonpublic information in connection with an Acquisition Proposal or for access to the properties, books or records of Seller by any person or entity that its fiduciary obligations under applicable law require informs Seller that it to do sois considering making, (B) (x) concurrently with entering into negotiations with such partyor has made, an Acquisition Proposal. Such notice shall be made orally and in writing and shall indicate in reasonable detail the Company gives Parent written notice identity of the Company's intention offeror and the terms and conditions of such proposal, inquiry or contact. Seller shall continue to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations keep Buyer informed, on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf a current basis, of the Company, the terms status of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, such discussions or negotiations with and all material terms being discussed or negotiated, which shall include, without limitation, any parties conducted heretofore with respect change to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation proposed price and terms and form of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Companypayment.
Appears in 2 contracts
Sources: Merger Agreement (Learning Co Inc), Merger Agreement (Broderbund Software Inc /De/)
No Solicitation. (a) Subject to the provisions The Company agrees that none of Section 5.2(c), from and after the date it or any of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company and its subsidiaries will not, Subsidiaries nor will they authorize or permit any of their respective officers, directors and employees will, and will cause its and its Subsidiaries’ officers, directors, agents, representatives, advisors and affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them not to, directly or indirectly, (i) solicit, initiate, solicit, encourage or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to knowingly facilitate any inquiries or the making of proposals with respect to, or engage in any proposal that constitutes negotiations concerning, or may reasonably be expected to lead provide any confidential or nonpublic information or data to, or have any discussions with, any Person relating to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Company Acquisition Proposal or otherwise facilitate any effort to attempt or make or implement a Company Acquisition Proposal.
(vb) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating Notwithstanding anything to any Acquisition Transaction; provided, however, that nothing the contrary contained in this Section 5.4 shall prohibit Agreement, if at any time after the ----------------- Board of Directors of date hereof and prior to, but not after, obtaining the Company from (i) in response to Shareholder Approval the Company receives an unsolicited, unsolicited bona fide written Company Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faithfaith that such Company Acquisition Proposal constitutes, after consultation with or is reasonably expected to result in, a Company Superior Proposal, then the Company and its outside counselBoard of Directors may, that and may permit its fiduciary obligations under applicable law require it Subsidiaries and its and its Subsidiaries’ representatives to, furnish or cause to do so, (B) (x) concurrently with furnishing any such be furnished nonpublic information to, and participate in such negotiations or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal discussions to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its faith (and based on the advice of outside legal counsel, ) that failure to take such actions would be more likely than not to result in a violation of its fiduciary obligations duties under applicable law require Law; provided that prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso or engaging in any negotiations, it to do so, (B) (x) concurrently with entering shall have entered into negotiations a confidentiality agreement with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such third party on behalf of terms no less restrictive in the Company, aggregate to the terms of which are at least as restrictive as the terms counterparty than those contained in the Confidentiality AgreementAgreement and which expressly permits the Company to comply with its obligations pursuant to this Section 6.9. The Subject to the foregoing and Section 6.9(c) below, the Company and its subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations conducted before the date of this Agreement with any parties conducted heretofore persons other than Parent with respect to any Company Acquisition Proposal and will use its reasonable best efforts, subject to applicable Law, to (i) enforce any confidentiality or similar agreement relating to a Company Acquisition Proposal and (ii) within ten (10) Business Days after the date hereof, request and confirm the return or destruction of any confidential information provided to any Person (other than Parent and its affiliates) pursuant to any such confidentiality or similar agreement. The Company will promptly (and in any event within twenty-four (24) hours) advise Parent following receipt of any Company Acquisition Proposal. Without limiting , any discussions or negotiations are sought to be initiated or continued or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Company Acquisition Proposal and the foregoingsubstance thereof (including the identity of the Person making such Company Acquisition Proposal), and will keep Parent promptly apprised of any related developments, discussions and negotiations (including the terms and conditions of any such request, inquiry or Company Acquisition Proposal, or all amendments or proposed amendments thereto) on a current basis (it is being understood that for the avoidance of doubt that no such communications to Parent shall be deemed an Adverse Change of Recommendation). The Company agrees that it shall contemporaneously provide to Parent any violation of the restrictions set forth in the preceding two sentences by any officer, director confidential or employee of nonpublic information concerning the Company or any of its subsidiaries or Subsidiaries that may be provided to any investment banker, attorney or other advisor or representative Person in connection with any Company Acquisition Proposal which has not previously been provided to Parent.
(c) (i) None of the Board of Directors of the Company or any committee thereof shall: (A) except as expressly permitted by, and after compliance with, Section 6.9(c)(ii)(B) hereof, make any Adverse Change of its subsidiaries shall be deemed Recommendation; or (B) cause or permit the Company to be enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other agreement (other than a breach of this confidentiality agreement referred to in Section 5.4 by 6.9(b) entered into in compliance with Section 6.9(b) relating to any Company Acquisition Proposal made to the Company.
Appears in 2 contracts
Sources: Merger Agreement (Intermountain Community Bancorp), Merger Agreement (Columbia Banking System Inc)
No Solicitation. (a) Subject to the provisions of Section 5.2(c), from From and after the date hereof and continuing until the earlier of this Agreement until the Effective Time or the termination of this Agreement pursuant to Article VIIIX, the Company and its subsidiaries will not, nor will they authorize or and shall not permit any of their respective officers, directors, affiliates or employees its or any investment bankerof its Subsidiaries' officers or directors to, attorney or authorize any of its or any of its Subsidiaries' employees, attorneys, financial advisors, agents or other advisor or representative retained by any of them representatives to, directly or indirectly, (i) solicit, initiate, initiate or knowingly encourage or induce the making, submission or announcement (including by way of any Acquisition Proposal (as hereinafter definedfurnishing information), (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action intended to facilitate any inquiries or facilitate, the making of any proposal that constitutes a Takeover Proposal from any Person, or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in or continue discussions or negotiations with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise third party relating to any Acquisition Transaction; provideda Takeover Proposal by or involving such third party, however, that nothing contained in this Section 5.4 nor shall prohibit the ----------------- Board of Directors of the Company from (i) in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that approve the Board taking of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished action prohibited by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board provisions of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreementthis sentence above. The Company agrees that it will, and will cause its subsidiaries will officers, directors and representatives to, immediately cease and cause to be terminated any and all existing activities, discussions or negotiations existing as of the date of this Agreement with any parties conducted heretofore with respect to any Acquisition Takeover Proposal. Without limiting Notwithstanding anything in this Agreement to the foregoingcontrary, it the Company and its Board of Directors shall be permitted to (i) to the extent applicable, comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with respect to a Takeover Proposal, (ii) file a Form 8-K with the SEC with respect to the entering into of this Agreement, including any exhibits deemed appropriate with respect thereto, or (iii) effect a Change in Company Recommendation during the Window Period, if and only to the extent that, in any such case as is understood that any referred to in clause (iii) (A) the Company has received during the Window Period a bona fide written Takeover Proposal from a third party not solicited by the Company in violation of this Section 7.9 and such Takeover Proposal constitutes a Superior Proposal, (B) the restrictions set forth Company has furnished to Parent a Notice of Superior Proposal in accordance with Section 7.9(b)(iii) and (C) Parent does not, within 48 hours of Parent's receipt of the preceding two sentences by any officerNotice of Superior Proposal, director or employee deliver to the Company a binding, written offer to acquire 100% of the equity securities of the Company (by merger or any otherwise) that the Board of its subsidiaries or any investment banker, attorney or other advisor or representative Directors of the Company or any determines in its good faith judgment (after receipt of written advice of its subsidiaries shall be deemed financial advisor of nationally recognized reputation) to be at least as favorable to the Company's stockholders as such Superior Proposal. The Company agrees that it will use its best efforts to promptly inform its directors, officers, key employees, agents and representatives of the obligations undertaken in this Section 7.9.
(b) During the Window Period, and at any time thereafter if the Board of Directors of the Company shall have effected a breach Change in Company Recommendation, the Company may engage in discussions or negotiations with, or provide information to, any Person in response to a bona fide written Takeover Proposal by any such Person not solicited by the Company in violation of this Section 5.4 7.9, if and only to the extent that, (i) such Takeover Proposal constitutes a Superior Proposal, (ii) prior to providing any non-public information or data to any person in connection with a Takeover Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement containing confidentiality terms as least as stringent as those contained in the Confidentiality Agreement referred to in Section 7.2 and (iii) at least 48 hours prior to providing any non-public information or data to any Person in connection with a Takeover Proposal or entering into discussions or negotiations with any Person in connection with a Takeover Proposal, the Company notifies Parent of such Takeover Proposal, any such non-public information requested from the Company, or any such discussions or negotiations sought to be initiated or continued with, any of the Company's representatives indicating, in connection with such notice, the name of such Person and the material terms and conditions of any inquiries, proposals or offers (a "Notice of Superior Proposal"). Notwithstanding any provision of this Agreement to the contrary, in the event that subsequent to the date of this Agreement and prior to the earlier of (x) the expiration of the Window Period and (y) such time as this Agreement becomes available on the SEC's ▇▇▇▇▇ system, any Person makes an unsolicited request for a copy of this Agreement, the Company shall be permitted to provide such Person with a copy of this Agreement.
(c) Nothing in this Section 7.9 shall (i) permit the Company to terminate this Agreement or (ii) affect any other obligation of the Company under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Teletech Holdings Inc), Merger Agreement (Newgen Results Corp)
No Solicitation. (a) Subject to the provisions of Except as expressly permitted by this Section 5.2(c)5.3, from and after the date hereof, the Company shall and shall use reasonable best efforts to cause its Representatives to on its behalf, (x) immediately cease and cause to be terminated any discussions, solicitations or negotiations with any Third Party that may be ongoing with respect to any Acquisition Proposal or any other proposal, offer, inquiry or request that would reasonably be expected to result in a Acquisition Proposal, (y) terminate access to the Dataroom by any Third Party and (z) reasonably promptly request that any Third Party that has executed a confidentiality agreement within the twelve month period immediately preceding the date hereof in connection with such Third Party’s consideration of any Acquisition Proposal return or destroy all confidential information concerning the Company made available to such Third Party in connection with such discussions or negotiations. Except as expressly permitted by this Agreement Section 5.3, from and after the date hereof until the Effective Time or receipt of the Company Stockholder Approval, or, if earlier, the termination of this Agreement pursuant to in accordance with Article VII7, the Company shall not and shall use its subsidiaries will not, nor will they authorize or permit any reasonable best efforts to cause its Representatives not to on behalf of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them tothe Company, directly or indirectly, (i) solicit, initiate, solicit or intentionally facilitate or intentionally encourage or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined)or any other proposal, offer, inquiry or request that would reasonably be expected to result in an Acquisition Proposal, (ii) knowingly engage in, continue or otherwise participate in any discussions or negotiations regardingregarding any proposal, offer, inquiry or request that constitutes, or would reasonably be expected to result in, an Acquisition Proposal, or furnish to any person any non-public information with respect toregarding the Company or provide access to its properties to any Third Party (other than Parent, Merger Sub and their Representatives) relating to any proposal, offer, inquiry or request that constitutes, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may would reasonably be expected to lead toresult in, an Acquisition Proposal (other than informing any Third Party that the provisions of this Section 5.3 prohibit any such discussions or negotiations), or (iii) approve any transaction under, or any Third-Party becoming an “interested stockholder”, under contained in Section 203 the DGCL. Except as expressly permitted by this Section 5.3, from and after the date hereof until the receipt of the Company Stockholder Approval, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (A) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, any Acquisition Proposal, (iiiB) engage withdraw, change or qualify, in discussions with any person with respect a manner adverse to any Acquisition ProposalParent or Merger Sub, except as to the existence of these provisionsCompany Board Recommendation, (ivC) approvepublicly make any recommendation in connection with a tender or exchange offer, endorse other than a recommendation against such offer or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contracta temporary “stop, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors of the Company from (i) in response to an unsolicited, bona fide written Acquisition Proposal from a reputable look and responsible third party for a Company Acquisition that listen” communication by the Board of Directors of the Company has reasonably concluded (based on, among other things, type contemplated by Rule 14d-9(f) under the advice of a financial advisor of nationally recognized reputationExchange Act in accordance with Section 5.3(g), (D) following the date of any Acquisition Proposal (other than an Acquisition Proposal that is reasonably expected a tender or exchange offer described in clause (C)) or any material modification thereof is publicly announced or disclosed, fail to lead issue a press release to a Superior Offerreaffirm the Company Board Recommendation within 10 Business Days after Parent so requests in writing (or, furnishing nonpublic information if earlier, at least two Business Days prior to the party making Company Meeting) (it being understood that the Company will have no obligation to make such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of reaffirmation more than once per each public announcement) (E) approve or cause the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offerenter into any merger agreement, to the extent that (A) the Board letter of Directors intent, memorandum of the Company concludes understanding, agreement in good faithprinciple, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information tojoint venture or partnership agreement, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality other similar agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect relating to any Acquisition Proposal, (F) fail to include the Company Board Recommendation in the Proxy Statement or (G) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (A) through (G) of this sentence, a “Change of Board Recommendation”). Without limiting the foregoing, it is understood that any violation breach of the restrictions set forth contained in the preceding two sentences this Section 5.3 by any officer, director or employee of the Company’s Representatives at the direction of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 5.3 by the Company.
(b) In addition, from and after the date hereof, the Company (i) shall not modify, amend or terminate, or waive, release, or assign any standstill provisions or similar agreements with any Third Party and (ii) shall enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreements; provided, that if the Company Board determines in good faith after consultation with the Company’s outside legal counsel that the failure to waive a particular standstill provision or similar agreement would be reasonably likely to be inconsistent with the directors’ fiduciary duties to the stockholders of the Company under applicable Law, the Company may waive such standstill or similar agreement.
(c) Notwithstanding anything to the contrary contained in Section 5.3(a), if at any time following the date hereof and prior to the receipt of the Company Stockholder Approval, the Company receives a bona fide written Acquisition Proposal from a Third Party, which Acquisition Proposal did not result from a material breach of this Section 5.3, and the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its financial advisors and outside counsel, based on information then available, that (i) such Acquisition Proposal constitutes or would reasonably be expected to result in or lead to a Superior Proposal, and (ii) the failure to take such action would be reasonably likely to be inconsistent with the directors’ fiduciary duties to the stockholders of the Company under applicable Law, then the Company may (A) furnish information with respect to the Company to the Third Party making such Acquisition Proposal and its Representatives if, and only if, prior to furnishing such information, such Third Party has executed an Acceptable Confidentiality Agreement, and (B) participate in discussions or negotiations with the Third Party making such Acquisition Proposal regarding such Acquisition Proposal; provided that any non-public information concerning the Company provided or made available to any Third Party shall, to the extent not previously provided or made available to Parent or Merger Sub, be provided or made available to Parent or Merger Sub prior to or concurrently with such disclosure to such Third Party, except to the extent providing Parent or Merger Sub with such information would violate any applicable Law.
(d) From and after the date hereof, the Company shall (i) promptly (and in any event within 24 hours) notify Parent in the event that the Company receives any proposal, or offer, that constitutes, or would reasonably be expected to result in, an Acquisition Proposal, which notice shall include a summary of the material terms and conditions of (and the identity of the Third Party making) such proposal, offer, inquiry or request and shall include with such notice, a copy of such proposal or offer and copies of any other documents, in each case, evidencing or specifying the material terms and conditions of such proposal, offer, inquiry or request, to the extent provided in writing (or, where no such copy is available, a reasonable description of such proposal or offer) and (ii) thereafter keep Parent reasonably informed on a reasonably prompt (and, in any event within 24 hours) basis of any material developments with respect to, or any material change to the key terms of, any such Acquisition Proposal, including by providing copies of any additional draft agreements relating to, or written proposals containing any material term of, any such Acquisition Proposal received by the Company or any of its Representatives.
(e) Notwithstanding anything to the contrary contained in Section 5.3(a), if after the date hereof the Company receives a bona fide written Acquisition Proposal from a Third Party that did not result from a material breach of this Section 5.3, and the Company Board (or any duly authorized committee thereof) determines in good faith, after consultation with its financial advisors and outside counsel, (i) such Acquisition Proposal constitutes a Superior Proposal, and (ii) the failure to take such action would be reasonably likely to be inconsistent with the directors’ fiduciary duties to the stockholders of the Company under applicable Law, then the Company Board may at any time prior to the receipt of the Company Stockholder Approval, (i) effect a Change of Board Recommendation with respect to such Superior Proposal and/or (ii) terminate this Agreement pursuant to Section 7.1(f), in either case subject to the requirements of this Section 5.3(e). The Company shall not be entitled to effect a Change of Board Recommendation pursuant to this Section 5.3(e) or terminate this Agreement pursuant to Section 7.1(f) unless:
(i) the Company shall have provided to Parent four Business Days’ prior written notice (the “Notice Period”) of the Company’s intention to take such action, which notice shall specify the material terms and conditions of such Acquisition Proposal, and shall have provided to Parent a copy of the available proposed transaction agreement to be entered into in respect of such Acquisition Proposal;
(ii) during the Notice Period, if requested by Parent, the Company shall have, and shall have caused its legal and financial advisors to have, engaged in good faith negotiations with Parent and its Representatives regarding any amendment to this Agreement proposed in writing by Parent and intended to cause the relevant Acquisition Proposal to no longer constitute a Superior Proposal; and
(iii) the Company Board shall have considered in good faith any adjustments and/or proposed amendments to this Agreement (including a change to the price terms hereof) and the other agreements contemplated hereby that may be irrevocably offered in writing by Parent (the “Proposed Changed Terms”) no later than 11:59 p.m., New York City time, on the last day of the Notice Period and shall have determined in good faith after consultation with the Company’s financial advisors and outside legal counsel that (I) the Superior Proposal continues or would continue to constitute a Superior Proposal if such Proposed Changed Terms were to be given effect, and (II) the failure to take such action would reasonably likely be inconsistent with the directors’ fiduciary duties to the stockholders of the Company under applicable Law. In the event of any material revisions to such Superior Proposal offered in writing by the Third Party making such Superior Proposal, the Company shall be required to deliver a new written notice to Parent and to again comply with the requirements of this Section 5.3(e) with respect to such new written notice, except that the Notice Period shall be two Business Days with respect to any such revised Superior Proposal.
(f) Notwithstanding anything to the contrary contained in Section 5.3(a), the Company Board (or a duly authorized committee thereof) may at any time prior to the receipt of the Company Stockholder Approval effect a Change of Board Recommendation if (i) the Company Board (or a duly authorized committee thereof) determines that an Intervening Event has occurred and is continuing and (ii) the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with outside counsel, that the failure to effect a Change of Board Recommendation in response to such Intervening Event would be reasonably likely to be inconsistent with its fiduciary duties to the stockholders of the Company, but such Change of Board Recommendation shall not occur until a time that is after the fourth Business Day following Parent’s receipt of written notice from the Company advising Parent of the material information and facts relating to such Intervening Event and stating that it intends to make a Change of Board Recommendation and provided that (A) during such four Business Day period the Company has negotiated in good faith with Parent and its Representatives to the extent Parent wishes to negotiate to make such adjustments to the terms and conditions of this Agreement as would enable the Company Board to proceed with the Company Board Recommendation and (B) at the end of such four Business Day period, the Company Board maintains its determination described in the foregoing clause (ii) (after taking into account any adjustments offered in writing by Parent to the material terms and conditions of this Agreement).
(g) Nothing contained in this Section 5.3 shall prohibit the Company Board from (i) disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A promulgated under the Exchange Act; or (ii) making any disclosure to the stockholders of the Company if the Company Board (or any duly authorized committee thereof) determines in good faith, after consultation with outside counsel, that the failure to make such disclosure would be reasonably likely to be inconsistent with its fiduciary duties to the stockholders of the Company or violate applicable Law; provided that any disclosure by the Company shall state that the Company Board Recommendation continues to be in effect unless, prior to such public disclosure, a Change of Board Recommendation has been made in compliance with this Section 5.3. The issuance by the Company or the Company Board of a “stop, look and listen” statement pending disclosure of its position, as contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, shall not constitute a Change of Board Recommendation.
(h) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Iteris, Inc.), Merger Agreement (Iteris, Inc.)
No Solicitation. (a) Subject to the provisions of Section 5.2(c)JetStar agrees that, from and after the date of this Agreement hereof until the earlier of the Termination Date or the Effective Time or termination of this Agreement pursuant to Article VIITime, the Company it (i) will not (and will not permit its subsidiaries will not, nor will they authorize or permit any of their respective officers, directors, affiliates employees, agents or employees or representatives, including any investment banker, attorney or other advisor or representative accountant retained by any of them it, to, directly or indirectly, (i) solicit, initiateinitiate or encourage (including by way of furnishing non-public information) any inquiry, encourage proposal or induce offer (including any proposal or offer to its stockholders) with respect to a third party tender offer, merger, consolidation, business combination or similar transaction involving any assets or class of capital stock of JetStar, or any acquisition of the makingcapital stock of JetStar or a business or assets (other than sales of assets in the ordinary course of business) of JetStar in a single transaction or a series of related transactions, submission or announcement any combination of the foregoing (any such proposal, offer or transaction being hereinafter referred to as a “JetStar Acquisition Proposal (as hereinafter defined), (iiProposal”) or participate or engage in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any concerning a JetStar Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors of the Company from (i) in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any third parties conducted heretofore with respect to any JetStar Acquisition Proposal. Without limiting ; provided that, subject to Section 7.3(b), nothing contained in this Agreement shall prevent JetStar or its Board of Directors from (A) making any disclosure to the foregoing, it is understood holders of JetStar Shares if in the good faith judgment of JetStar’s Board of Directors failure to make such disclosure would be inconsistent with its fiduciary duties under applicable law or (B) providing information (pursuant to a confidentiality agreement in reasonably customary form and which does not contain terms that prevent JetStar from complying with its obligations under this Section 5.2(a)) to or engaging in any violation negotiations or discussions with any person or group who has made an unsolicited bona fide JetStar Acquisition Proposal with respect to all of the restrictions outstanding shares of capital stock of JetStar or all or substantially all of the assets of JetStar if, with respect to the actions set forth in clause (B), (x) in the preceding two sentences by good faith judgment of JetStar’s Board of Directors, taking into account, among other things, the likelihood of consummation and after consultation with its financial advisors, such JetStar Acquisition Proposal is reasonably likely to result in a transaction more favorable to the holders of JetStar Shares from a financial point of view than the Merger (a “JetStar Superior Proposal”) and (y) the Board of Directors of JetStar, after consultation with its outside legal counsel, determines in good faith that the failure to do so would be inconsistent with its fiduciary obligations under applicable law.
(b) JetStar agrees that it will notify Basic promptly (and in any officerevent within 24 hours) if any proposal or offer relating to or constituting a JetStar Acquisition Proposal is received by, director any information is requested from, or employee of the Company any discussions or negotiations are sought to be initiated or continued with, JetStar or any of its subsidiaries officers, directors, employees, agents or any investment bankerrepresentatives. In connection with such notice, attorney or other advisor or representative JetStar shall indicate the identity of the Company person or group making such request or inquiry or engaging in such negotiations or discussions and the material terms and conditions of any JetStar Acquisition Proposal. Thereafter, JetStar shall keep Basic fully informed on a prompt basis (and in any event within 24 hours) of its subsidiaries any material changes, additions or adjustments to the terms of any such proposal or offer. Prior to taking any action referred to in clause (B) of the proviso of Section 5.2(a), if JetStar intends to participate in any such discussions or negotiations or provide any such information to any such third party, JetStar shall be deemed give prior notice to be Basic.
(c) Nothing in this Section 5.2 shall permit JetStar to enter into any agreement with respect to a breach JetStar Acquisition Proposal during the term of this Agreement, it being agreed that, during the term of this Agreement, JetStar shall not enter into any agreement with any person that provides for, or in any way facilitates, a JetStar Acquisition Proposal, other than a confidentiality agreement and/or standstill agreement permitted under Section 5.4 by the Company5.2(a).
Appears in 1 contract
No Solicitation. (a) Subject to Until the provisions of Section 5.2(c), from and after Closing Time or the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VIIthe provisions of Section 10.1 hereof, as the Company and its subsidiaries case may be, except with the written consent of ServiceSoft, Balisoft will not, not (nor will they authorize or Balisoft permit any of their respective Balisoft's officers, directors, agents, representatives or affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them to, ) directly or indirectly, take any of the following actions with any party other than ServiceSoft or its designees: (i) solicit, initiateconduct discussions with or engage in negotiations with any person, encourage or induce relating to the making, submission or announcement possible acquisition by any person other than ServiceSoft of any Acquisition Proposal material portion of the business of Balisoft or the Balisoft Subsidiaries (as hereinafter definedwhether by way of reorganization, merger, purchase of outstanding capital stock, purchase of assets or otherwise) or of any portion of the capital stock of Balisoft or the Balisoft Subsidiaries (an "ALTERNATIVE BALISOFT TRANSACTION"), (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public provide information with respect toto it to any person, other than ServiceSoft, relating to or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposalin connection with an Alternative Balisoft Transaction, (iii) enter into an agreement with any person, other than ServiceSoft, providing for an Alternative Balisoft Transaction or (iv) make or authorize any statement, recommendation or solicitation in support of an Alternative Balisoft Transaction.
(b) Until the Closing Time or the date of termination of this Agreement pursuant to the provisions of Section 10.1 hereof, as the case may be, except with the written consent of Balisoft, ServiceSoft will not (nor will ServiceSoft permit any of ServiceSoft's officers, directors, agents, representatives or affiliates to) directly or indirectly, take any of the following actions with any party other than Balisoft or its designees: (i) solicit, conduct discussions with or engage in discussions negotiations with any person, relating to the possible acquisition by any person other than Balisoft of any material portion of the business of ServiceSoft or the ServiceSoft Subsidiaries (whether by way of reorganization, merger, purchase of outstanding capital stock, purchase of assets or otherwise) or of any portion of the capital stock of ServiceSoft or the ServiceSoft Subsidiaries (an "ALTERNATIVE SERVICESOFT TRANSACTION"), (ii) provide information with respect to it to any Acquisition Proposalperson, except other than Balisoft, relating to or in connection with an Alternative ServiceSoft Transaction, (iii) enter into an agreement with any person, other than Balisoft, providing for an Alternative ServiceSoft Transaction or (iv) make or authorize any statement, recommendation or solicitation in support of an Alternative ServiceSoft Transaction.
(c) If, prior to the Closing Time or the termination of this Agreement, Balisoft or ServiceSoft receives any bona fide offer or proposal relating to any of the above, such party shall immediately notify the other party thereof, including information as to the existence identity of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors of the Company from (i) in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making any such Acquisition Proposal, offer or proposal and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material specific terms of such Acquisition Proposal so offer or proposal, as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offercase may be; PROVIDED, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counselHOWEVER, that its fiduciary obligations under applicable law require it neither party shall be required to do sonotify the other of any contacts with parties who have previously made offers to them where such parties repeat such previously made offers, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which previously made offers are at least as restrictive as the terms contained in the Confidentiality Agreementdeclined, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Companyhave no further contact.
Appears in 1 contract
Sources: Combination Agreement (Servicesoft Technologies Inc)
No Solicitation. (a) Subject a. After the date hereof and prior to the provisions of Section 5.2(c), from and after the date of this Agreement until the Effective Time Closing or earlier termination of this Agreement pursuant to Article VIIAgreement, the Company and its subsidiaries will not, agrees that neither it nor will they authorize or permit any of their respective its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall not permit its or its Subsidiaries’ officers, directors, affiliates employees, agents or employees or representatives (including any investment bankerbankers, attorney attorneys, accountants or other advisor or representative retained by advisors) (collectively, “Representatives”) to (and shall not authorize any of them to), directly or indirectly, : (i) solicit, initiate, encourage or induce knowingly facilitate any inquiries with respect to, or the making, submission or announcement of of, any Acquisition Proposal (as hereinafter defined), Proposal; (ii) participate in any discussions or negotiations regardingregarding any Acquisition Proposal, or furnish to any person Person any non-public nonpublic information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage Company in discussions connection with any person with respect to any such Acquisition Proposal, except as to notify such Person of the existence of these provisions, this Section 5.20; (iviii) approve, endorse or recommend any Acquisition Proposal Proposal; or (viv) enter into any letter of intent or similar document or any contract, agreement contract or commitment understanding contemplating or otherwise relating to any Acquisition Transaction; providedProposal or transaction contemplated thereby, however, that nothing contained except in this Section 5.4 shall prohibit the ----------------- Board case of Directors of the Company from clauses (i) in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputationii), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, (iii) and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, (iv) to the extent that specifically permitted pursuant to Section 5.20(b). Notwithstanding the foregoing, clauses (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parenta)(i) and (iia)(ii) shall not apply during the period of time after an Other Devco Member has provided the Company an ECP Funding Stop Notice (as defined in response the LLC Agreement) pursuant to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with Section 3.7 of the party making such Acquisition Proposal LLC Agreement and during which the parties to the extent that LLC Agreement are negotiating to determine whether to waive the applicable Funding Condition (Aas defined in the LLC Agreement) or to amend the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished LLC Agreement pursuant to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality AgreementSection. The Company and its subsidiaries Subsidiaries will immediately cease cease, and shall cause each of their respective Representatives to cease, any and all existing activities, discussions or negotiations with any third parties conducted heretofore with respect to, or that could reasonably be expected to lead to or contemplate the possibility of, any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation Proposal except to advise such third parties of the restrictions set forth in existence of the preceding two sentences by any officerprovisions of this Section. Notwithstanding anything herein to the contrary, director or employee the Company may attend and make presentations at investor conferences and hold one-on-one discussions with shareholders and analysts. The Company shall, with respect to each Person which has within the 12 months prior to the date of this Agreement executed a confidentiality agreement with the Company or any of its subsidiaries Subsidiaries or any investment bankerof its or their Representatives with respect to such Person’s consideration of a possible Acquisition Proposal, attorney exercise any rights it has to require such Person to immediately return or other advisor or representative of destroy (which destruction shall be certified in writing by such Person to the Company) all confidential information heretofore furnished by the Company or any of its subsidiaries Subsidiaries or any of its or their Representatives to such Person or any of its Subsidiaries or any of its or their Representatives.
b. Notwithstanding anything in Section 5.20(a) to the contrary, if at any time prior to the Shareholder Approval, (i) the Company receives an Acquisition Proposal that the Board of Directors of the Company determines in good faith to be bona fide; (ii) such proposal did not result from a breach by the Company of this Section 5.20; (iii) 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, that such Acquisition Proposal constitutes or could reasonably be expected to result in a Superior Proposal; and (iv) 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, that the failure to do so would result in a breach of its fiduciary duties to the shareholders of the Company under applicable Law, then the Company may (A) furnish information with respect to the Company 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; provided that the Company (x) will not, and will not allow its Subsidiaries or its or their Representatives to, disclose any non-public information to such Person without first entering into a confidentiality agreement that contains terms no less favorable in the aggregate to the Company than those contained in the Confidentiality Agreement between the Company and ECP, dated as of October 30, 2007 and (y) will provide to the Purchasers’ Representative any material non-public information provided to such other Person which was not previously provided to the Purchasers’ Representative.
c. The Company shall as promptly as reasonably practicable (and, in any event, within one Business Day) provide oral and written notice to the Purchasers’ Representative of receipt by the Company of any Acquisition Proposal or any request for nonpublic information or inquiry which could reasonably be expected to lead to any Acquisition Proposal, and the material terms and conditions of any such Acquisition Proposal, request or inquiry, and the identity of the person making any such Acquisition Proposal, request or inquiry, and shall keep the Purchasers’ Representative reasonably informed of any material modifications or material developments (including amendments or proposed amendments) with respect to such Acquisition Proposal, request or inquiry, including without limitation, promptly providing the Purchasers’ Representative with copies of all written Acquisition Proposals, request or inquiries, including draft agreements or term sheets.
d. Notwithstanding anything in Section 5.20(a) to the contrary, at any time prior to the Shareholder Approval, the Board of Directors of the Company may, in response to a Superior Proposal, effect an Adverse Recommendation Change, provided 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, that the failure to do so would result in a breach of its fiduciary duties to the shareholders of the Company under applicable Law, and provided, further, that the Board of Directors of the Company may not effect such an Adverse Recommendation Change unless (i) such Superior Proposal did not result from a breach by the Company of this Section 5.20; (ii) the Company has complied in all respects with this Section 5.20, including Section 5.20(c), (iii) the Board of Directors shall have first provided prior written notice to the Purchasers’ Representative (an “Adverse Change Notice”) that it is prepared to effect an Adverse Recommendation Change in response to a Superior Proposal, which notice shall attach the most current version of any written agreement relating to the transaction that constitutes such Superior Proposal, and (iv) Purchasers do not make, within five business days after the receipt of such notice, a proposal that would, in the reasonable good faith judgment of the Board of Directors of the Company (after consultation with a financial advisor of national reputation and outside legal counsel), cause the offer previously constituting a Superior Proposal to no longer constitute a Superior Proposal. The Company agrees that, during the five business day period prior to its effecting an Adverse Recommendation Change, the Company and its officers, directors and representatives shall negotiate in good faith with the Purchasers’ Representative and its officers, directors, and representatives regarding any revisions to the terms of the transaction contemplated by this Agreement proposed by the Purchasers’ Representative.
e. Nothing contained in this Section 5.20 shall prohibit the Company or the Board of Directors of the Company from complying with its disclosure obligations under U.S. federal or state Law, including taking and disclosing to the shareholders of the Company a position contemplated by Rule 14e-2(a) and Rule 14d-9 promulgated under the Exchange Act (or any similar communication to shareholders); provided that any public disclosure other than a “stop-look-and-listen” communication to the shareholders of the Company pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or any similar communications to the shareholders of the Company) shall be deemed to be a breach an Adverse Recommendation Change unless such other public disclosure contains therein an express statement that the Board of this Section 5.4 by Directors of the Company (i) rejects the applicable Acquisition Proposal or (ii) reaffirms its recommendation that the Company’s shareholders vote in favor of the Shareholder Approval.
Appears in 1 contract
No Solicitation. For a period of twelve (a12) Subject to months following the provisions of Section 5.2(c)Closing Date, from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VIIParent, the Company and its subsidiaries will not, nor will they authorize or permit any of their respective officersAffiliates shall refrain from, directors, affiliates either alone or employees or in conjunction with any investment banker, attorney or other advisor or representative retained by any of them toPerson, directly or indirectly, (i) solicit, initiate, encourage or induce the making, submission or announcement soliciting for hire any employee of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document Purchaser or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition TransactionAffiliate of Purchaser; provided, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors of the Company shall not be prohibited from (i) in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party soliciting for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation employment any Person whose employment with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company Purchaser or any of its subsidiaries Affiliates terminated prior to such solicitation or any investment bankerRetained Employee. COVENANTS OF PURCHASER Purchaser covenants and agrees with the Company that, attorney at all times from and after the date hereof until the Closing and, in the case of Sections 5.04, 5.05, 5.06, 5.07, 5.08 and 5.10 below, thereafter, Purchaser will comply with all covenants and provisions of this Article V, except to the extent the Company may otherwise consent in writing. . Purchaser will as promptly as practicable (a) take all steps necessary or desirable to obtain all consents, approvals, actions, Licenses, orders or authorizations of, or make all registrations, declarations or filings with and give all notices to Governmental or Regulatory Authorities or any other Person required of Purchaser to consummate the transactions contemplated hereby and will diligently and in good faith strive to obtain the same including, without limitation, making all necessary filings under the HSR Act with the Federal Trade Commission and the Department of Justice no later than three (3) Business Days following the expiration of the Diligence Period and making all necessary filings with the Commission no later than five (5) Business Days following the expiration of the Diligence Period, (b) provide such other information and communications to such Governmental or Regulatory Authorities or other advisor Persons as such Governmental or representative Regulatory Authorities or other Persons may request in connection therewith and (c) provide cooperation to the Company in connection with the performance of their obligations under Sections 4.01 and 4.02 above. The parties acknowledge and agree that so long as Purchaser complies with clauses (a) and (b) of the Company foregoing sentence, any failure or any of its subsidiaries refusal by the Commission to approve the transactions contemplated by this Agreement shall not be deemed to be a breach of the obligations of Purchaser or Parent hereunder; provided that nothing contained <page>herein shall limit the obligations of Purchaser to comply with any other covenant or agreement contained in this Section 5.4 Agreement or shall relieve Purchaser from liability for any breach of a representation or warranty contained in this Agreement. Purchaser will provide prompt written notification to the Company when any such consent, approval, action, order, authorization, registration, declaration, filing or notice referred to in clause (a) above is obtained, taken, made or given, as applicable, and will advise the Company of any communications (and, unless precluded by Law, provide copies of any such communications that are in writing) with any Governmental or Regulatory Authority or other Person regarding any of the Companytransactions contemplated by this Agreement.
Appears in 1 contract
No Solicitation. (a) Subject to the provisions of Section 5.2(c), from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company and its subsidiaries will not, nor will they authorize Authorize or permit any of their its respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them agents to, directly or indirectly, : (i) solicit, initiate, encourage or induce the making, submission or announcement (including by way of any Acquisition Proposal (as hereinafter defined), (iifurnishing information) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate facilitate, any inquiries inquiry or the making of any proposal that constitutes which constitutes, or may reasonably be expected to lead to, any Acquisition Proposalacquisition or purchase of a substantial amount of assets of, or any equity interest in, 3DX or any merger, consolidation, business combination, sale of substantially all assets, sale of securities, recapitalization, liquidation, dissolution or similar transaction involving 3DX (iiiother than the transactions contemplated by this Agreement) engage or any other material corporate transaction the consummation of which would or could reasonably be expected to impede, interfere with, prevent or materially delay the merger contemplated by this Agreement (collectively, "3DX Transaction Proposals") or agree to or endorse any 3DX Transaction Proposal or (ii) propose, enter into or participate in any discussions with or negotiations regarding any of the foregoing, or furnish to another person any information with respect to any Acquisition Proposalits business, except as to the existence of these provisions, (iv) approve, endorse properties or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document assets or any contractof the foregoing, agreement or commitment contemplating or otherwise relating cooperate in any way with, or assist or participate in, facilitate or encourage, an effort or attempt by any other person to do or seek any Acquisition Transaction; providedof the foregoing, howeverPROVIDED, HOWEVER, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors of the Company from foregoing clauses (i) in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that shall not prohibit 3DX from (A) furnishing information pursuant to an
3.11.1 shall prohibit 3DX or its board of directors from making such disclosure to 3DX's stockholders which, in the Board good faith judgment of Directors 3DX's board of directors, may be required under applicable law. In the Company concludes event that 3DX receives either a 3DX Transaction Proposal or a Superior 3DX Transaction Proposal, 3DX shall have 5 business days from the date of receipt of such proposal to evaluate the proposal and determine whether it will accept or reject the proposal. For purposes of this Agreement, the term "Superior 3DX Transaction Proposal" shall mean a BONA FIDE 3DX Transaction Proposal that the board of directors of 3DX determines in good faith, faith after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations based in part on the use advice of) its independent financial advisors clearly and disclosure unambiguously to be more favorable to 3DX's stockholders than the merger contemplated by this Agreement, is reasonably capable of all nonpublic written being financed and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect is not subject to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed material contingencies relating to be a breach of this Section 5.4 by the Companyfinancing.
Appears in 1 contract
No Solicitation. (a) Subject to Each of the provisions Stockholders agrees that such --------------- Stockholder shall not, and, except as set forth in Section 3.4 of Section 5.2(c)the Corporate Partners Disclosure Letter, from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company and its subsidiaries will Corporate Advisors agrees that it shall not, nor will they shall it permit any of its Subsidiaries or Affiliates to, nor shall it authorize or permit any of their respective its officers, directors, affiliates or employees or any employees, agents, investment bankerbankers, attorney attorneys, financial advisors or other advisor or representative retained by any of them representatives (collectively, "Representatives") to, directly or indirectly, (i) solicit, initiate, initiate or encourage (including by way of furnishing information or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined), (iiassistance) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, an Acquisition Proposal from any Acquisition ProposalThird Party, (iii) or engage in any discussions with or negotiations relating thereto or in furtherance thereof or accept or enter into any person agreement with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in that, notwithstanding any other provision of this Section 5.4 shall prohibit Agreement, -------- ------- if such Stockholder or any representative of Corporate Advisors is a member of the ----------------- Board of Directors of the Company from (i) Directors, such Stockholder or representative may take any action in response to an unsolicited, bona fide written Acquisition Proposal from such Person's capacity as a reputable and responsible third party for a Company Acquisition director that the Board of Directors would be permitted to take in accordance with Section 7.10 of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Merger Agreement. The Company Such Stockholder and its subsidiaries will Corporate Advisors shall immediately cease and cause to be terminated any and all existing activitiessolicitation, discussions initiation, encouragement, activity, discussion or negotiations negotiation with any parties conducted heretofore by such Stockholder or Corporate Advisors, as the case may be, or any of its Representatives with respect to any of the foregoing. Each such Stockholder and Corporate Advisors shall promptly (but in any event within 24 hours thereafter) notify Acquiror orally and in writing of any Acquisition Proposal or any inquiry which could lead to an Acquisition Proposal. Without limiting the foregoing, it is understood that any violation within 24 hours of the restrictions set forth in receipt thereof, including the preceding two sentences by any officer, director or employee identity of the Company Third Party making any such Acquisition Proposal or inquiry and the material terms and conditions of any Acquisition Proposal, and if such inquiry or proposal is in writing, such Stockholder shall deliver to Acquiror a copy of its subsidiaries such inquiry or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Companyproposal.
Appears in 1 contract
Sources: Stockholders' Agreement (Continental Cablevision Inc)
No Solicitation. (a) Subject to the provisions of Section 5.2(c), from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the The Company and its subsidiaries will shall not, nor will they authorize or shall it permit any of their respective officersits Subsidiaries to, directorsnor shall it authorize (and shall use its best efforts not to permit) any affiliate, affiliates officer, director, manager or employees employee of, or any investment banker, attorney or other advisor or representative retained by (collectively, "Representatives") of the Company or any of them its Subsidiaries to, directly or indirectly, (i) solicit, initiate, encourage facilitate or induce encourage, directly or indirectly, any inquiries relating to, or the makingsubmission of, submission or announcement of any Acquisition Proposal (as hereinafter defined)Proposal, (ii) participate in any discussions or negotiations regardingregarding any Acquisition Proposal, or in connection with any Acquisition Proposal, or furnish to any person Person any non-public information or data with respect toto or provide access to the properties of the Company or any of its Subsidiaries, or take any other action to facilitate any inquiries or the making of any proposal that constitutes constitutes, or may reasonably be expected to lead to, any Acquisition Proposal, Proposal or (iii) engage enter into any agreement with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal; provided, that notwithstanding anything to the contrary contained in discussions this Agreement, nothing contained in this Section 5.3 or any other provision hereof shall prohibit the Company or the Company's board of directors from taking and disclosing to the Company's shareholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, provided that Company may not, except as permitted by Section 5.3(b), withdraw or modify, or propose to withdraw or modify, the Company Board Recommendation or approve or recommend, or propose to approve or recommend any person Acquisition Proposal, or enter into any agreement with respect to any Acquisition Proposal, except as to the existence . Upon execution of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors of the Company from (i) in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such partyAgreement, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties Person conducted heretofore with respect to any Acquisition Proposalof the foregoing. Without limiting Notwithstanding the foregoing, it is understood prior to the time of acceptance of Company Common Stock for payment pursuant to the Offer, the Company may furnish information concerning its businesses or its Subsidiaries, properties or assets to any Person or "group" (as defined in the Exchange Act and the rules promulgated thereunder) and may negotiate and participate in discussions and negotiations with such Person or group concerning a Superior Proposal (as defined below), provided that any violation such Person or group shall have entered into a confidentiality agreement, the confidentiality provisions of which shall not be materially more favorable to such third party than those provided for in the Confidentiality Agreement (provided that such confidentiality agreement must permit the Company to disclose to Parent all of the restrictions set forth in the preceding two sentences information required to be disclosed by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of Parent by this Section 5.4 by the Company.5.3) if:
Appears in 1 contract
Sources: Merger Agreement (Hte Inc)
No Solicitation. (a) The Company shall, and shall cause its Subsidiaries and its and their respective directors and officers and shall use reasonable best efforts to cause its and their respective other Representatives to (x) immediately cease any and all existing discussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal and (y) as soon as reasonably practicable after the date hereof demand the return or destruction of all confidential, non-public information and materials that have been provided to third parties relating to a possible Acquisition Proposal.
(b) Subject to the provisions other terms of this Section 5.2(c)5.2 and Section 5.3, from at all times during the period commencing with the execution and after the date delivery of this Agreement and continuing until the Effective Time or earlier to occur of the termination of this Agreement pursuant to Article VIIARTICLE IX and the Effective Time, the Company shall not, and shall cause its Subsidiaries and its subsidiaries will not, nor will they authorize or permit any of and their respective officersdirectors and officers not to, directors, affiliates or employees or any investment banker, attorney or and shall use reasonable best efforts to cause its and their respective other advisor or representative retained by any of them Representatives not to, directly or indirectly, (i) solicit, initiate, encourage knowingly encourage, or induce knowingly facilitate any inquiry or the making, submission or announcement making of any proposal or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal (as hereinafter defined)Proposal, (ii) other than with Parent, Merger Sub or their respective Representatives and other than, in response to an unsolicited Acquisition Proposal that did not result from a breach of this Section 5.2, solely to inform any Person of the provisions of this Section 5.2, enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person Person any non-public information with respect toin connection with, any Acquisition Proposal or take any other action to facilitate any inquiries inquiry, proposal or the making of any proposal offer that constitutes or may could reasonably be expected to lead to, any to an Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse execute, enter into, or recommend propose to approve, execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement (other than an Acceptable Confidentiality Agreement entered into in the circumstances referred to in Section 5.2(c)) (A) relating to or that could reasonably be expected to lead to any Acquisition Proposal or (vB) enter into requiring it to abandon, terminate or fail to consummate the Merger and the other transactions contemplated by this Agreement (an “Alternative Transaction Agreement”) or (iv) grant any letter of intent waiver or release under any standstill, confidentiality or other similar document agreement (except that if the Company Board determines in good faith that the failure to grant any waiver or release would be reasonably likely to be inconsistent with the directors’ fiduciary duties under Israeli Law, the Company may waive any contract, agreement or commitment contemplating or otherwise relating such standstill provision in order to any permit a third party to make an Acquisition Transaction; provided, however, that nothing contained Proposal).
(c) Notwithstanding anything to the contrary set forth in this Section 5.4 shall prohibit Section 5.2 or elsewhere in this Agreement, prior to the ----------------- Board of Directors receipt of the Company from Shareholder Approval, the Company Board (or a committee thereof) may, directly or indirectly through the Company’s Representatives, (i) in response to contact any Person (and its advisors) that has made an unsolicited, bona fide written Acquisition Proposal (which did not result from a reputable breach of this Section 5.2) after the date of this Agreement solely for the purpose of clarifying the terms of such Acquisition Proposal, to the extent necessary and responsible third party for solely to determine whether such proposal constitutes, or could reasonably be expected to lead to, a Company Acquisition that the Board of Directors of Superior Proposal, and (ii) if the Company has reasonably concluded Board shall have determined in good faith (based on, among other things, the advice of a after consultation with its financial advisor and outside legal counsel) that a bona fide, written Acquisition Proposal which did not result from a breach of nationally recognized reputation), is this Section 5.2 either constitutes or could reasonably be expected to lead to a Superior OfferProposal and that the failure to engage in such discussions or negotiations would be reasonably likely to be inconsistent with the directors’ fiduciary duties under Israeli Law, furnishing nonpublic information only with respect to the party making this clause (ii), (A) participate or engage in discussions or negotiations with any such Person regarding such Acquisition Proposal, and submitting (B) furnish to any such Person that has made such an Acquisition Proposal any information relating to the party making Company or its Subsidiaries and/or afford to any such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as Person access to the material terms of such Acquisition Proposal so as business, properties, assets, books, records or other information, or to enable the Board of Directors any personnel, of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offeror its Subsidiaries, to the extent that in each case under clause (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, and this clause (B) (x) concurrently with furnishing any such nonpublic information pursuant to, or written questions and subject to the prior execution of, an Acceptable Confidentiality Agreement. A copy of all such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic non-public information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained other access described in the Confidentiality Agreementforegoing clause (B), and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information not previously provided to Parent (or its Representatives) shall be provided to the extent such nonpublic information has Parent as promptly as reasonably practicable, and in any event not been previously furnished by the Company to Parentmore than forty-eight (48) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faithhours, after consultation with its outside counselsuch information or access, that its fiduciary obligations under applicable law require it to do soas applicable, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished has been provided or made available to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality AgreementPerson (or its Representatives). The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to shall notify Parent in writing promptly (but in no event later than 48 hours) after receipt of any Acquisition Proposal. Without limiting the foregoing, it is understood that Proposal (or any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of request for nonpublic information relating to the Company or any of its subsidiaries or Subsidiaries by any investment banker, attorney or other advisor or representative of Person that informs the Company or any of its subsidiaries Subsidiaries that it is considering making, or has made, an Acquisition Proposal) and shall be deemed indicate the identity of the Person making the Acquisition Proposal or request and the material terms and conditions of any such Acquisition Proposal (including a copy thereof if in writing and any related material documentation or material correspondence, including proposed agreements), and shall keep Parent reasonably informed, on a reasonably current basis, of the status (including any changes to be the material terms and conditions thereof and material developments with respect thereto) of any such Acquisition Proposal, including by providing a breach copy of this Section 5.4 by all material documentation or material correspondence relating thereto, no later than forty-eight (48) hours after the Companyreceipt of the Acquisition Proposal or the occurrence of any such material developments, as applicable, including proposed agreements and any material change in its intentions as previously notified.
Appears in 1 contract
Sources: Merger Agreement (Frutarom LTD)
No Solicitation. (a) Subject The Company and its Subsidiaries shall immediately cease and cause to be terminated, and shall not authorize or knowingly permit any of the provisions of Section 5.2(c)Company’s or its Subsidiaries’ Representatives to continue, from any and after all existing activities, discussions or negotiations with any Third Party conducted heretofore with respect to any Acquisition Proposal. The Company shall promptly (and in any event within five (5) Business Days following the date hereof) request in writing that each Third Party that has executed a confidentiality agreement since the date which is one year prior to the date of this Agreement in connection with its consideration of a possible Acquisition Proposal return or destroy all confidential information heretofore furnished to such Third Party by or on behalf of the Company and the Company shall use commercially reasonable efforts (which for purposes of this Section 6.1 shall not include any obligation to commence litigation against any Person) to have such information returned or destroyed (to the extent destruction of such information is permitted by such confidentiality agreement). Table of Contents
(b) Except as expressly permitted by this Section 6.1 or Section 6.2, at all times during the period commencing with the execution and delivery of this Agreement and continuing until the Effective Time or earlier to occur of the termination of this Agreement pursuant to Article VIIVIII and the Effective Time, the Company and its subsidiaries will not, nor will they Subsidiaries shall not (and shall not authorize or knowingly permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them Representatives to), directly or indirectly, (i) solicit, initiate, encourage or knowingly encourage, knowingly facilitate or knowingly induce the making, submission or announcement of any an Acquisition Proposal (as hereinafter defined)or the making of any inquiry, offer or proposal that would reasonably be expected to lead to an Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any person Third Party any non-public information with respect torelating 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 Third Party, or take any other action action, in each case, intended to assist or facilitate any inquiries or the making of an Acquisition Proposal or any inquiry, offer or proposal that constitutes or may would reasonably be expected to lead to, any to an Acquisition Proposal, (iii) participate or engage in discussions with any person or negotiations with respect to an Acquisition Proposal with any Third Party that is seeking to make or has made an Acquisition Proposal (other than, in the case of both clauses (ii) and (iii) of this Section 6.1(b), in response to an unsolicited inquiry or submitted Acquisition Proposal, except as to refer the existence inquiring or submitting person to this Section 6.1, and provided, that the Company and its Representatives may communicate in writing with a person who had made an unsolicited bona fide written Acquisition Proposal (and its Representatives) solely to clarify (and not negotiate) the existing terms of, and ascertain additional facts regarding, such Acquisition Proposal for the purpose of these provisionsthe Company Board informing itself about such Acquisition Proposal and the person making it (any such communication, a “Clarification Request”)), (iv) approve, endorse or recommend any an Acquisition Proposal Proposal, or (v) execute or enter into any letter of intent intent, memorandum of understanding or similar document or any contract, agreement or commitment Contract contemplating or otherwise relating to any an Acquisition TransactionTransaction (other than a confidentiality agreement pursuant to this Section 6.1(b)); provided, however, that nothing contained in this Section 5.4 shall prohibit notwithstanding the ----------------- Board of Directors of foregoing, prior to obtaining the Requisite Shareholder Approval, the Company from Board may, directly or indirectly through any Representative, with respect to any Third Party that has made (iand not withdrawn) in response to an unsolicited, a bona fide written Acquisition Proposal after the date of this Agreement that did not result from a reputable and responsible third party for a Company Acquisition material breach (or deemed material breach) of Section 6.1(a) or Section 6.1(b) that the Company Board of Directors of the Company has reasonably concluded concludes in good faith (based on, among other things, the advice of a after consultation with its financial advisor of nationally recognized reputation), is and its outside legal counsel) constitutes or would reasonably be expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board engage or participate in discussions or negotiations with such Third Party and its Representatives and its potential sources of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, financing and/or (B) (x) concurrently with furnishing any such nonpublic information to, or written questions furnish to such partyThird Party, its Representatives and its potential financing sources any information (including non-public information) relating to the Company gives Parent written notice or any of its Subsidiaries, and provide access to the Company's intention ’s and its Subsidiaries assets, properties and Business Facilities pursuant to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed a confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as no less favorable to the terms Company than those contained in the Confidentiality AgreementAgreement (provided that such confidentiality agreement need not contain any “standstill” or similar provision that would prohibit such Third Party from making any Acquisition Proposal) and containing additional provisions that expressly permit the Company to comply with the terms of this Section 6.1 (which confidentiality agreement shall be provided to Parent for informational purposes promptly following the execution and delivery thereof), provided that in the case of any action taken pursuant to the foregoing clauses (A) or (B), (1) the Company Board determines in good faith (after consultation with outside legal counsel) that the failure to take such action would reasonably be likely to be inconsistent with its fiduciary duties to shareholders of the Company under Delaware Law, (2) solely with respect to the initial contact with respect to any Third Party, the Company shall provide Parent written notice within thirty-six (36) hours of the Company engaging or participating in discussions or negotiations with, or furnishing non-public information to, such Third Party and (C3) contemporaneously with promptly following furnishing any such nonpublic non-public information to such partyPerson, the Company furnishes such nonpublic non-public information to Parent (to the extent such nonpublic information has not been previously furnished or made available by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board Parent or any of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality AgreementRepresentatives). The Company and its subsidiaries will immediately cease agrees not to grant any and all existing activities, discussions waiver or negotiations with release under any parties conducted heretofore standstill or similar agreement with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation class of the restrictions set forth in the preceding two sentences by any officer, director or employee equity securities of the Company or any of its subsidiaries or Subsidiaries, and shall use reasonable best efforts to enforce each such agreement.
(c) Without limiting the generality of the foregoing, Parent, Merger Sub, Merger Sub LLC and the Company acknowledge and hereby agree that any investment banker, attorney or other advisor or representative action taken by any Representative of the Company or any of its subsidiaries Subsidiaries that would be a breach of the restrictions set forth in Section 6.1(a) or Section 6.1(b) if taken by the Company shall be deemed to be a breach of this such Section 5.4 by the CompanyCompany for all purposes of and under this Agreement.
Appears in 1 contract
No Solicitation. (a) Subject to the provisions The Company shall not, directly or indirectly through any officer, director, employee, representative or agent of Section 5.2(c), from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company and its subsidiaries will not, nor will they authorize or permit any of their respective officers, directors, affiliates or employees or its Subsidiaries (including any investment banker, attorney or other advisor or representative accountant retained by it or any of them its Subsidiaries), (i) make any offer or proposal to any Person to, directly or indirectly, (A) sell, issue or otherwise transfer any capital stock (including, without limitation, by way of a tender offer) of the Company, (B) sell or otherwise transfer any material assets or properties of the Company or any of its Subsidiaries (other than Permitted Transactions on the terms previously disclosed in writing to the Investors) or (C) effect any recapitalization, refinancing, restructuring, merger, consolidation or other business combination involving the Company (any of the foregoing referred to herein as an "ALTERNATIVE TRANSACTION"), (ii) grant any waivers with respect to Section 203 of the DGCL to any third parties, (iii) solicit or encourage the initiation of (including by way of furnishing information) any inquiries or proposals regarding any Alternative Transaction (an "ACQUISITION PROPOSAL") or (iii) have any discussion with or provide any non-public information or data to any third party that would encourage, facilitate or further an Acquisition Proposal, or engage in any negotiations concerning an Acquisition Proposal, or knowingly facilitate any effort or attempt to make or implement an Acquisition Proposal; PROVIDED THAT the Company may have discussions with and provide non-public information and data (but only to the extent that such information was previously provided to the Investors prior to the execution of this Agreement or is provided to the Investors concurrently therewith) to a third party that has made an unsolicited bona fide written Acquisition Proposal if, and only to the extent that (x) the Board of Directors determines in good faith (i) solicitthat such Acquisition Proposal would, initiateif consummated, encourage or induce the making, submission or announcement of any Acquisition be reasonably likely to constitute a Superior Proposal (as hereinafter defined), ) and (ii) participate after consulting with outside legal counsel, that failing to take such action would constitute a breach of the fiduciary obligations of the Board of Directors under applicable Law and (y) prior to taking such action, the Company provides reasonable notice to the Investors (not later than 48 hours prior to taking any such action) to the effect that it is taking such action and receives from such Person an executed confidentiality/standstill agreement in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or reasonably customary form.
(b) The Company shall notify the making Investors orally and in writing promptly (but in no event later than 24 hours) after receipt of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with and any person with respect modification of or amendment to any Acquisition Proposal, except as and any request for non-public information relating to the existence Company or any of these provisions, (iv) approve, endorse or recommend any its Subsidiaries in connection with an Acquisition Proposal or (v) enter into any letter of intent for access to the properties, books or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors records of the Company from (i) in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition or any Subsidiary by any Person that informs the Board of Directors of the Company or such Subsidiary that it is considering making, or has reasonably concluded made, an Acquisition Proposal. Such notice shall indicate the identity of the Person making the Acquisition Proposal or intending to make an Acquisition Proposal or requesting non-public information or access to the books and records of the Company, the material terms of any such Acquisition Proposal or modification or amendment to an Acquisition Proposal and copies of any written Acquisition Proposals or amendments or supplements thereto. The Company shall keep the Investors informed, on a current basis, of any material changes in the status and any material changes or modifications in the material terms of any such Acquisition Proposal, indication or request.
(c) The Company shall (and shall cause its representatives to) immediately cease and cause to be terminated any existing discussions or negotiations with any Persons (other than the Investors) conducted heretofore with respect to any of the foregoing. The Company agrees not to release any third party from the confidentiality and standstill provisions of any agreement to which the Company is a party.
(d) The Board of Directors shall not approve or recommend or permit the Company or any of its Subsidiaries to enter into any Contract with respect to any Acquisition Proposal made by any Person other than the Investors. Notwithstanding the foregoing, (i) the Board of Directors may take and disclose to the Company's stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act; and (ii) if the Board of Directors, after consulting with outside legal counsel, determines in good faith that failing to take such action would constitute a breach of the fiduciary obligations of the Board of Directors under applicable Law, the Board of Directors may approve or recommend an Acquisition Proposal or cause the Company to enter into a Contract with respect thereto, but in the case of clause (ii) only if (a) the Company provides written notice to the Investors (a "NOTICE OF SUPERIOR PROPOSAL"), which notice must be received by the Investors at least seven (7) Business Days (exclusive of the day of receipt by the Investors) prior to the time it intends to cause the Company to enter into such a Contract, advising the Investors in writing that the Board of Directors has received an Acquisition Proposal that it believes constitutes a Superior Proposal and that it intends to accept and, with respect to which, enter into a definitive agreement, subject to the provisions of this SECTION 5.08(D), providing a copy of any written offer or proposal describing the Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the Person making such Superior Proposal, (b) as of the end of the seven (7) Business Day period referenced above, the Investors shall have failed to notify the Company in writing that they have determined to revise the terms of the Transactions so that such Acquisition Proposal would not constitute a Superior Proposal, and (c) the Company terminates this Agreement in accordance with the requirements of SECTION 7.01(H) (and pays the termination fee contemplated by SECTION 7.03) within 48 hours after the lapse of the seven (7) Business Day period referenced above and immediately thereafter enters into an agreement with respect to such Superior Proposal. For purposes of this Agreement, a "SUPERIOR PROPOSAL" means a bona fide Acquisition Proposal to (i) acquire for cash more than 50% of the Common Stock of the Company (determined on a fully-diluted basis and after giving effect to the consummation of such Superior Proposal) or (ii) invest $100 million or more for newly issued equity of the Company, that, in either case, is not subject to a financing condition nor due diligence and not directly or indirectly initiated, solicited, encouraged or knowingly facilitated by the Company in violation of this Agreement, which the Board of Directors determines in its good faith judgment (based on, among other things, on the advice of a financial advisor an investment banker of nationally recognized reputation), is reasonably expected to lead to taking into account all relevant legal, financial, regulatory and other aspects of the proposal and the Person making the proposal, (i) would provide aggregate greater value from a Superior Offer, furnishing nonpublic information financial point of view to the party making such Acquisition Proposal, Company and submitting to its stockholders than the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) Transactions and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed reasonably likely to be a breach of this Section 5.4 by the Companycompleted.
Appears in 1 contract
Sources: Stock Purchase Agreement (Seabulk International Inc)
No Solicitation. (a) Subject to the provisions of Section 5.2(c), from From and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VIIhereof, neither Parent nor the Company will, and each will use its subsidiaries will not, nor will they authorize or permit best efforts to cause any of their respective its officers, directors, affiliates or employees or any investment bankeremployees, attorney attorneys, financial advisors, agents or other advisor or representative retained by representatives and those of any of them its Subsidiaries not to, directly or indirectly, (ia) invite, solicit, initiate, initiate or knowingly encourage or induce the making, submission or announcement (including by way of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any person any furnishing non-public information with respect to, or take any other action to facilitate any inquiries or the making of assistance) any proposal or offer from any person that constitutes constitutes, or may reasonably be expected to lead to, any Acquisition Proposala Takeover Proposal (as hereinafter defined), or (iiib) engage in or continue discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise negotiations relating to any Acquisition Transactiona Takeover Proposal; provided, however, that nothing contained in this Section 5.4 shall prohibit prior to the ----------------- Board receipt of Directors of approval by their respective shareholders, the Company from (i) and the Parent may engage in response to discussions or negotiations with, or furnish information concerning itself and its Subsidiaries, business, properties or assets to, any third party which makes an unsolicited, bona fide written Acquisition Takeover Proposal from a reputable and responsible third party for a Company Acquisition that (as hereinafter defined) if the Board of Directors of the Company has reasonably concluded or the Parent, as applicable, (based on, among other things, i) concludes in good faith on the basis of the written advice of its respective outside counsel (in the case of the Company, Sommer & Barnard, PC ▇▇▇ ▇n t▇▇ ▇▇▇▇ of the Parent, Kirkland & Ellis) th▇▇ ▇▇▇ ▇ail▇▇▇ ▇o take such action would violate the fiduciary obligations of such Board under applicable law, and (ii) concludes in good faith that such Takeover Proposal includes the necessary financing or commitments thereof and is reasonably capable of being consummated taking into account all legal, financial and regulatory aspects of the Takeover Proposal and, in the case of the Company, that such Takeover Proposal would, if consummated, be more favorable, from a financial advisor point of nationally recognized reputationview, to the shareholders of the Company than the Merger (any such more favorable Takeover Proposal satisfying all of the conditions set forth herein being referred to as a "Superior Proposal") and the Company enters into an appropriate confidentiality agreement with such third party (which agreement shall be no less favorable to the Company than the Confidentiality Agreement), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose copy of which is will be delivered to elicit clarifications as to Parent promptly after execution thereof. Each of Parent and the Company will promptly (but in no case later than 24 hours) notify (and if in writing, provide a copy to) the other party of any Takeover Proposal or amendment or modification thereof, including the material terms and conditions thereof. As used in this Agreement, "Takeover Proposal" shall mean any proposal or offer, or any expression of such Acquisition Proposal so as interest by any third party relating to enable Parent's or the Board of Directors of the Company Company's willingness or ability to make receive or discuss a determination whether to construe such Acquisition Proposal as a Superior Offerproposal or offer, to the extent that for (A) the Board a tender or exchange offer, or other acquisition of Directors beneficial ownership of, in each case 20% or more of the Company concludes in good faithoutstanding voting capital stock of Parent or the Company, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do sorespectively, (B) (x) concurrently with furnishing any such nonpublic information toa merger, consolidation, share exchange, recapitalization or written questions to such party, the Company gives other business combination involving either Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries their respective Subsidiaries or (C) any investment banker, attorney acquisition in any manner of 20% or other advisor or representative more of the assets of, either Parent or the Company and their respective Subsidiaries, taken as a whole in one or any more of its subsidiaries shall be deemed to be a breach series of this Section 5.4 by the Companyrelated transactions.
Appears in 1 contract
No Solicitation. (a) Subject to the provisions of Section 5.2(c), from From and after the date of this Agreement hereof until the Effective Time or termination of this Agreement pursuant to Article VIITime, the Company and its subsidiaries will shall not, nor will they shall it authorize or permit any of their respective its officers, directors, affiliates or employees or any employees, agents, investment bankerbankers, attorney attorneys, financial advisors or other advisor or representative retained by any of them torepresentatives (collectively, directly or indirectly, "Company Representatives") to (i) solicit, initiateinitiate or knowingly encourage the submission of, encourage or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined)Proposal, (ii) enter into any agreement with respect to any Acquisition Proposal, or (iii) participate in any discussions or negotiations regarding, or furnish to any person Person any non-public information with respect to, or take any other action to knowingly facilitate any inquiries or the making of any proposal that constitutes or may would reasonably be expected to lead to, any an Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained that, notwithstanding anything to the contrary in this Section 5.4 shall prohibit the ----------------- Board of Directors of the Company from Agreement, (i) the Company may participate in response to an unsoliciteddiscussions or negotiations with, bona fide written Acquisition Proposal from and may furnish information concerning the Company and its business, properties and assets to, a reputable and responsible third party for a who, without any solicitation by the Company Acquisition that or any Company Representatives after the date of this Agreement, seeks to engage in such discussions or negotiations or requests such information, if (1) the Board of Directors of the Company has reasonably concluded (determines, based on, among other things, on the advice of a financial advisor of nationally recognized reputation)the Company's outside legal counsel, is that failing to engage in such discussion or negotiations or provide such information would reasonably be expected to lead to a Superior Offer, furnishing nonpublic information to violate the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose fiduciary duties of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do sostockholders, (B2) (x) concurrently with prior to engaging in discussions or negotiations with, or furnishing any such nonpublic information to, or written questions to such partyThird Party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives shall receive from such party Third Party an executed confidentiality agreement containing in reasonably customary limitations form on the use and disclosure of all nonpublic written and oral information furnished terms not more favorable to such party on behalf of the Company, the terms of which are at least as restrictive as Person or entity than the terms contained in the Confidentiality Agreement, and (C3) contemporaneously with furnishing any such nonpublic information the Acquisition Proposal would result in the holders of Company Common Stock being entitled to such partyreceive consideration which, in the Company furnishes such nonpublic information to Parent aggregate, would be greater than $12.50 per share (to the extent such nonpublic information has not been previously furnished by the Company to Parent) collectively, a "Permitted Acquisition Proposal"), and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it may take and disclose to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention stockholders a position with regard to enter into negotiations with a tender offer or exchange offer contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act and may make such party and (y) disclosure to the stockholders of the Company receives from such party an executed confidentiality agreement containing customary limitations on as may be required under Applicable Law; provided, that the use and disclosure Board of all nonpublic written and oral information furnished to such party on behalf Directors of the Company, Company shall not recommend that the terms stockholders of which are at least as restrictive as the terms contained in the Confidentiality Agreement. Company tender their shares of Company Common Stock unless such recommendation is permitted by Section 8.5(d).
(b) The Company shall immediately notify Acquiror and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to Merger Sub of any Acquisition Proposal. Without limiting , including the foregoing, it is understood that any violation identity of the restrictions set forth Third Party making any such Acquisition Proposal and the material terms and conditions of any Acquisition Proposal.
(c) As used in this Agreement, "Acquisition Proposal" shall mean any proposal or offer from any person relating to (i) any direct or indirect acquisition or purchase of more than 20% of either the preceding two sentences by any officer, director or employee capital stock of the Company or the consolidated assets of the Company and its Subsidiaries taken as a whole, (ii) any tender offer or exchange offer that if consummated would result in any person beneficially owning 20% or more of its subsidiaries or any investment banker, attorney or other advisor or representative the capital stock of the Company or (iii) any of its subsidiaries shall be deemed to be a breach of merger, consolidation or business combination, involving the Company other than the transactions contemplated by this Section 5.4 by the CompanyAgreement.
Appears in 1 contract
Sources: Merger Agreement (Sudbury Inc)
No Solicitation. (a) Subject to the provisions of Section 5.2(c), from From and after the date of this Agreement hereof until the Effective Time or termination of this Agreement pursuant to Article VIITime, the Company shall, and shall cause its subsidiaries will not, nor will they authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them Subsidiaries and direct its Representatives to, directly or indirectly, (ix) solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined), (ii) participate in immediately cease and cause to be terminated any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person Third Party conducted prior to the date hereof with respect to any Acquisition Proposal, except and (y) deliver a written notice to any such Third Party to the effect that the Company is terminating all discussions and negotiations with such Third Party with respect to any Acquisition Proposal, and requesting that such Third Party promptly return or destroy all confidential information concerning the Company and its Subsidiaries. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Effective Time, or, if earlier, the termination of this Agreement in accordance with Article 7, the Company shall not, and shall cause its Subsidiaries and direct its and their respective Representatives not to on behalf of the Company, initiate, solicit, facilitate or knowingly encourage any Acquisition Proposal or the making or submission thereof, or (y) engage in, continue or otherwise participate in any discussions or negotiations with a Third Party regarding (other than to inform any Third Party of the existence of these provisionsthe provisions contained in this Section 5.3) or (z) furnish or provide any nonpublic information in connection with, any Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Effective Time, or, if earlier, the termination of this Agreement in accordance with Article 7, neither the Company Board nor any committee thereof shall (i) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Acquisition Proposal, (ii) withdraw, change, qualify, withhold or modify, or publicly propose to withdraw, change, qualify, withhold or modify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) fail to include the Company Board Recommendation in the Schedule 14D-9, (iv) approve, endorse or recommend any in the event a tender offer that constitutes an Acquisition Proposal subject to Regulation 14D under the Exchange Act is commenced, fail to recommend against such Acquisition Proposal in any solicitation or recommendation statement made on Schedule 14D-9 within ten (10) Business Days of such commencement, (v) approve, authorize or cause or permit the Company or any of its Subsidiaries to enter into any merger agreement, acquisition agreement, letter of intent intent, memorandum of understanding or other similar document or any contract, agreement or commitment contemplating or otherwise (other than an Acceptable Confidentiality Agreement) relating to any Acquisition Transaction; providedProposal (a “Company Acquisition Agreement”), however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors or (vi) resolve or agree to do any of the Company from foregoing (any action set forth in the foregoing clauses (i) through (vi) of this sentence, a “Change of Board Recommendation”).
(b) Notwithstanding anything to the contrary contained in response Section 5.3(a), if at any time following the date hereof and prior to an unsolicited, the Acceptance Time (i) the Company has received a bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of Third Party, (ii) the Company has not breached this Section 5.3 with respect to such Acquisition Proposal and (iii) the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its financial advisors and outside legal counsel, based on information then available, that such Acquisition Proposal constitutes (or could reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably be expected to lead to to) a Superior OfferProposal and determines, furnishing nonpublic after consultation with its outside legal counsel, that its failure to take such action would be inconsistent with its fiduciary duties under applicable Law, then the Company may (A) furnish information with respect to the party Company and its Subsidiaries to the Third Party making such Acquisition Proposal, its representatives and submitting potential sources of financing pursuant to (but only pursuant to) one or more Acceptable Confidentiality Agreements or confidentiality agreements entered into during the six-month period prior to the party date hereof in connection with a prior Acquisition Proposal involving the Company, and (B) participate in discussions or negotiations with the Third Party making such Acquisition Proposal written questionsregarding such Acquisition Proposal; provided, however, that any non-public information concerning the sole purpose of which is Company or its Subsidiaries provided or made available to elicit clarifications as any Third Party shall, to the material terms extent not previously provided or made available to Parent or Merger Sub, be provided or made available to Parent or Merger Sub as promptly as reasonably practicable (and in no event later than twenty-four hours) after it is provided or made available to such Third Party.
(c) The Company shall promptly (and in any event within one Business Day) notify Parent in writing of the receipt of any Acquisition Proposal, which notice shall identify the Third Party making such Acquisition Proposal and include a copy of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe (or, where such Acquisition Proposal as was not submitted in writing, a Superior Offerreasonably detailed written description of such Acquisition Proposal including its material terms and conditions), except (and solely to the extent that (Aextent) such notification and/or disclosure is prohibited by the Board terms of Directors a confidentiality agreement to which the Company is a party as of the date of this Agreement, in which case the notice shall include a redacted copy of such Acquisition Proposal identifying the purchase price and form of consideration of the Acquisition Proposal (or, where such Acquisition Proposal was not submitted in writing, a reasonably detailed written description of such Acquisition Proposal including the purchase price and form of consideration of such Acquisition Proposal, but excluding the identity of the Third Party making such Acquisition Proposal). Without limiting the foregoing, the Company concludes shall keep Parent promptly informed (and in any event within one Business Day) in all material respects of the status of, and any material communications relating to, such Acquisition Proposal (including any change in the price or other material terms thereof). The Company shall not terminate, amend, modify, waive or fail to enforce any provision of any “standstill” or similar obligation of any Person unless the Company Board (or a duly authorized committee thereof) determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary obligations duties under applicable law require it to do soLaw; provided, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, that the Company gives promptly (and in any event within one Business Day) advises Parent written notice that it is taking such action and the identity of the Company's intention Persons with respect to furnish nonpublic informationwhich it is taking such action.
(d) Notwithstanding anything to the contrary contained in Section 5.3(a), or written questions to such party and if (yX) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, received a bona fide written Acquisition Proposal that the Company Board (or any duly authorized committee thereof) determines in good faith, after consultation with its financial advisors and outside legal counsel, constitutes a Superior OfferProposal, engaging in negotiations with which did not result from a material breach of this Section 5.3, or (Y) an Intervening Event occurs, the party making such Acquisition Proposal Company Board may at any time prior to the extent that Acceptance Time, effect a Change of Board Recommendation with respect to such Superior Proposal or Intervening Event, subject to the requirements of this Section 5.3(d). The Company shall not be entitled to effect a Change of Board Recommendation pursuant to this Section 5.3(d) unless:
(Ai) the Company Board of Directors of the Company concludes shall have determined in good faith, after consultation with its outside legal counsel, that the failure to make such a Change of Board Recommendation in response to the receipt of such Superior Proposal or the occurrence of such Intervening Event would be inconsistent with its fiduciary obligations duties under applicable law require it Law;
(ii) the Company shall have provided to do soParent at least three (3) Business Days’ prior written notice (the “Notice Period”) of the Company’s intention to take such actions, which notice shall specify the basis for such Change of Board Recommendation, and if such Change of Board Recommendation relates to a Superior Proposal, the identity of the Third Party making such Superior Proposal, the material terms and conditions of such Superior Proposal, and shall include a copy of the applicable Company Acquisition Agreement that is the definitive agreement for such Superior Proposal;
(Biii) (x) concurrently with entering into negotiations with such partyduring the Notice Period, if requested by Parent, the Company gives shall have, and shall have caused its Representatives to have, engaged in good faith negotiations with Parent written notice and its Representatives regarding any amendments or modifications to this Agreement proposed by Parent and intended to cause the relevant Acquisition Proposal or Intervening Event to no longer warrant a Change of Board Recommendation; and
(iv) at the end of such Notice Period, the Company Board shall have considered in good faith any proposed amendments or modifications to this Agreement (including a change to the price terms hereof) and the other agreements contemplated hereby that may be offered by Parent (the “Proposed Changed Terms”) by no later than 11:59 a.m., New York City time, on the last day of the Company's intention to enter into negotiations Notice Period and shall have determined in good faith, after consultation with such party its financial advisors and outside legal counsel, that (yX) the Company receives from Superior Proposal would continue to constitute a Superior Proposal if such party an executed confidentiality agreement containing customary limitations on the use Proposed Changed Terms were to be given effect and disclosure that failure to make a Change of all nonpublic written and oral information furnished Board Recommendation with respect to such party on behalf Superior Proposal would be inconsistent with its fiduciary duties under applicable Law or (Y) even if such Proposed Changed Terms were to be given effect, failure to make a Change of Board Recommendation with respect to such Intervening Event would be inconsistent with its fiduciary duties under applicable Law. In the event of (X) any change to the price terms or any other material revision or amendment to the terms of such Superior Proposal or (Y) change to the circumstances related to the Intervening Event that is adverse to the stockholders of the Company, the terms Company shall be required to deliver a new written notice to Parent and to again comply with the requirements of this Section 5.3(d) (which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore shall apply mutatis mutandis) with respect to such new written notice, and that in the case of such a new written notice, the Notice Period shall be two Business Days.
(e) Nothing contained in this Section 5.3 shall prohibit the Company Board from (i) disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A promulgated under the Exchange Act; or (ii) making any disclosure to the stockholders of the Company if the Company Board (or any duly authorized committee thereof) determines in good faith, after consultation with outside legal counsel, that the failure to make such disclosure would breach, or would be inconsistent with, its fiduciary duties or violate applicable Law; provided that any Change of Board Recommendation may only be made in accordance with Sections 5.3(d) and 5.3(e). The issuance by the Company or the Company Board of a “stop, look and listen” statement pending disclosure of its position, as contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or any factually accurate public statement that describes the Company’s receipt of an Acquisition Proposal. Without limiting , that no position has been taken by the foregoingCompany Board as to the advisability or desirability of such Acquisition Proposal and the operation of this Agreement with respect thereto, it is understood shall not constitute a Change of Board Recommendation.
(f) The Company acknowledges and agrees that any violation of the restrictions set forth in the preceding two sentences this Section 5.3 by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries Representatives shall be deemed to be a breach of this Section 5.4 5.3 by the Company.
(g) For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Synacor, Inc.)
No Solicitation. (a) Subject to the provisions of Section 5.2(c4.3(b), from and after during the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VIIPre-Closing Period, the Company and its subsidiaries will shall not, nor will they authorize or permit any of their respective the Company shall ensure that its directors, officers, directorsfinancial advisors, affiliates or employees or any investment bankerlegal advisors and other professional advisors (“Specified Representatives”) do not, attorney or and the Company shall use best efforts to cause its other advisor or representative retained by any of them Representatives not to, in each case directly or indirectly, : (i) solicit, initiate, knowingly facilitate or knowingly encourage or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined), or Acquisition Inquiry; (ii) participate in furnish any discussions or negotiations regarding, or furnish nonpublic information regarding the Company to any person any non-public information Person in connection with respect to, or take any other action in response to facilitate any inquiries an Acquisition Proposal or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, Inquiry; (iii) engage in discussions or negotiations with any person Person with respect to any Acquisition Proposal, except as Proposal or Acquisition Inquiry (other than to indicate to such Person that the Company is subject to the existence of these provisions, restrictions set forth in this Section 4.3); (iv) approve, endorse or recommend any Acquisition Proposal or Acquisition Inquiry; or (v) enter into any letter of intent or similar document or any contract, agreement or commitment Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, . The Company shall immediately cease and cause to be terminated any existing discussions with any Person that nothing relate to any Acquisition Proposal or Acquisition Inquiry.
(b) Notwithstanding anything to the contrary contained in this Section 5.4 shall prohibit 4.3(a), if: (x) prior to the ----------------- Board of Directors of Acceptance Time, the Company from (i) in response to receives an unsolicited, bona fide fide, written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Company Board has in good faith concluded (following the receipt of Directors advice of its outside legal counsel and its financial advisor) is, or is reasonably likely to lead to, a Superior Offer, and that is not withdrawn; and (y) neither the Company nor any Specified Representative of the Company has reasonably concluded breached any of the provisions set forth in Section 4.3(a), then the Company may then take the following actions (based onbut only if and to the extent that the Company Board concludes in good faith, among other things, following the receipt of advice of a its outside legal counsel and its financial advisor of nationally recognized reputation)advisor, is that the failure to do so would reasonably be expected to lead to constitute a Superior Offer, furnishing breach of its fiduciary duties under applicable Legal Requirements):
(i) furnish nonpublic information to the third party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that provided that: (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it at least two business days prior to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such third party, the Company gives Parent written notice of the Company's intention to furnish that it is furnishing such nonpublic information, or written questions information to such party and third party; (yB) prior to furnishing any such nonpublic information to such third party, the Company receives from such third party an executed confidentiality agreement containing customary limitations on the provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are “standstill” provisions) at least as restrictive favorable to the Company as the terms contained in provisions of the Current Confidentiality Agreement, ; and (C) contemporaneously with furnishing any such nonpublic information to such third party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and so furnished); and
(ii) engage in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into discussions and negotiations with such third party with respect to such Acquisition Proposal, provided that at least two business days prior to engaging in discussions or negotiations with such third party, the Company gives Parent written notice of the Company's its intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained engage in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposalsuch Person. Without limiting the generality of the foregoing, it is understood the Company acknowledges and agrees that any violation action inconsistent with any of the restrictions provisions set forth in the preceding two sentences sentence by any officerSpecified Representative, director whether or employee not such Specified Representative is purporting to act on behalf of any of the Company or any of its subsidiaries or any investment bankerCompany, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be constitute a breach of this Section 5.4 4.3 by the CompanyCompany and by such Specified Representative.
(c) If any Acquisition Proposal or Acquisition Inquiry is made or submitted by any Person during the Pre-Closing Period, then the Company shall promptly (and in no event later than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the material terms thereof), and shall provide Parent with a copy of all written communications, documents or materials received from the Person making such Acquisition Proposal or Acquisition Inquiry promptly after receipt thereof. The Company shall keep Parent informed with respect to: (i) the status of any such Acquisition Proposal or Acquisition Inquiry; and (ii) the status and material terms of any modification or proposed modification thereto.
(d) Except as expressly permitted by this Section 4.3(d), neither the Company Board nor the Special Committee shall: (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or Acquisition Sub, the Company Board Recommendation or the Special Committee Recommendation; (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal (any action described in clause “(i)” or “(ii)” of this sentence being referred to as a “Company Adverse Recommendation Change”); or (iii) enter into a binding, written, definitive acquisition agreement providing for the consummation of an Acquisition Transaction that constitutes a Superior Offer (a “Specified Definitive Acquisition Agreement”). Notwithstanding the foregoing, if at any time prior to the Acceptance Time: (A) an unsolicited, bona fide, written Acquisition Proposal is made to the Company and is not withdrawn; (B) such unsolicited, bona fide, written Acquisition Proposal was not obtained or made as a result of a breach of Section 4.3(a); (C) prior to any meeting of the Company Board at which the Company Board will consider and determine whether such Acquisition Proposal is a Superior Offer, the Company provides Parent with a written notice specifying the date and time of such
Appears in 1 contract
Sources: Share Allocation and Tender Offer Agreement (Ebay Inc)
No Solicitation. (a) Subject to the provisions of Section 5.2(c), Seller agrees that from and after the date of this Agreement until the Effective Time or Closing or, if earlier, the termination of this Agreement pursuant to Article VIIin accordance with its terms, Seller shall not, and Seller shall cause the Company Transferred Companies and its subsidiaries will not, nor will they authorize or permit any of and their respective officers, directors, affiliates or employees or any investment bankerbankers, attorney or attorneys and other advisor or representative retained by any of them to, directly or indirectly, advisors and representatives not to (i) initiate, solicit, initiate, encourage or induce the making, submission knowingly take any action to facilitate any inquiries with respect to a sale or announcement transfer of any Acquisition Proposal of the capital stock or assets of any of the Transferred Companies (as hereinafter defineda “Prohibited Transaction”), or (ii) participate in any discussions or negotiations with, or provide access to its properties, books and records or any confidential information or data to, any third party regarding any Prohibited Transaction.
(b) If the Merger Agreement is terminated in accordance with the provisions of Section 7.1(d) because, at a meeting of the stockholders of TLG duly convened, Seller shall not have voted in favor of the Merger Agreement or the transactions contemplated thereunder, Seller agrees that it shall not, and Seller shall cause the Transferred Companies and its and their respective officers, directors, investment bankers, attorneys and other advisors and representatives not to (i) initiate, solicit, encourage or knowingly take any action to facilitate any inquiries with respect to a Takeover Proposal, (ii) participate in any discussions or negotiations regardingwith, or furnish provide access to its properties, books and records or any person any non-public confidential information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead data to, any Acquisition Proposal, third party regarding any Takeover Proposal or (iii) engage in discussions with vote for or consent to any person transaction contemplated by any letter of intent, merger, acquisition or similar agreement with respect to any Acquisition Proposal, except as to the existence Takeover Proposal for a period of these provisions, eighteen (iv18) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document months following such termination; provided that nothing herein shall prohibit Seller or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit of the ----------------- Board of Directors Transferred Companies from selling common stock of the Company from on a “national securities exchange,” as defined under the Securities Exchange Act of 1934.
(ic) in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board For purposes of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality this Agreement, and “Takeover Proposal” shall mean any inquiry, proposal or offer from any Person (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company other than Purchaser or any of its subsidiaries Affiliates) relating to (A) any acquisition, merger, consolidation, reorganization, share exchange, recapitalization, liquidation, direct or any investment bankerindirect business combination, attorney asset acquisition or other advisor or representative similar transaction involving any of the Company Transferred Companies or TLG of (x) assets or businesses that constitute or represent 10% or more of the total revenue, operating income or assets of the Transferred Companies, taken as a whole immediately prior to such transaction, or TLG or (y) 10% or more of the outstanding shares of the capital stock of, or other equity or voting interests in, any of its subsidiaries shall be deemed to be a breach the Transferred Companies or TLG in each case other than the transactions contemplated by this Agreement or (B) any purchase or sale of, or tender offer or exchange offer for, capital stock of this Section 5.4 by any of the CompanyTransferred Companies or TLG that if consummated would result in any Person beneficially owning 10% or more of any class of capital stock of the Transferred Companies or TLG, as applicable.
Appears in 1 contract
No Solicitation. (a) Subject to During the provisions of Section 5.2(cperiod beginning on November 13, 2006 (the “Commencement Date”) and continuing until 12:01 a.m. Central Time on December 13, 2006 (the “Go-Shop Period”), from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company and its subsidiaries will not, nor will they authorize or permit any of their respective officers, directors, affiliates or employees or employees, agents and representatives, including any investment banker, attorney or other advisor or representative accountant retained by any of them the Company, shall have the right to, directly or indirectly, : (i) solicit, initiate, solicit and encourage or induce the makingAcquisition Proposals, submission or announcement including by way of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish providing access to any person any non-public information with respect to, or take to any other action Person pursuant to facilitate a confidentiality agreement in reasonably customary form and which does not contain terms that prevent the Company from complying with its obligations under this Section 5.2; provided that the Company shall promptly provide to Parent any inquiries material non-public information concerning the Company or the making of its Subsidiaries that is provided to any proposal that constitutes Person given such access which was not previously provided to Parent; and (ii) enter into and maintain or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in continue discussions with any person or negotiations with respect to Acquisition Proposals or otherwise cooperate with or assist or participate in, or facilitate any Acquisition Proposalsuch inquiries, proposals, discussions or negotiations.
(b) Subject to Section 5.2(c) and except as may relate to any Person or group of related Persons from whom the Company has received, after the Commencement Date and prior to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors expiration of the Company from (i) in response to an unsolicitedGo-Shop Period, a bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board board of Directors directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes believes in good faith, after consultation with its outside legal counsel, that its fiduciary obligations under applicable law require it constitutes or could reasonably be expected to do so, lead to a Superior Proposal (B) (x) concurrently with furnishing any such nonpublic information toPerson or group of related Persons, or written questions to such partyan “Identified Party”), the Company gives Parent written notice of the Company's intention to furnish nonpublic informationshall, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of shall cause its officers, directors, employees, agents or representatives, including any investment banker, attorney or accountant retained by the Company, from and after the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors expiration of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it Go-Shop Period to do so, (Bi) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any third parties conducted heretofore with respect to any Acquisition Proposal; and (ii) until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 7, not solicit, initiate or encourage (including by way of furnishing non-public information) any inquiry, proposal or offer (including any proposal or offer to its stockholders) with respect to a third-party tender offer, merger, consolidation, business combination, sale of assets, sale of stock or joint venture or similar transaction involving any assets or class of capital stock of the Company, or any acquisition of the capital stock of the Company or a business or material assets (other than sales of current assets in the ordinary course of business) of the Company in a single transaction or a series of related transactions, or any combination of the foregoing (any such proposal, offer or transaction being hereinafter referred to as an “Acquisition Proposal”) or engage in any discussions or negotiations concerning an Acquisition Proposal.
(c) Notwithstanding anything to the contrary in Section 5.2(b) but subject to the last sentence of this Section 5.2(c), at any time following the expiration of the Go-Shop Period and prior to obtaining the Requisite Vote, in response to a bona fide written Acquisition Proposal (which must be unsolicited except to the extent made in response to a solicitation made during the Go-Shop Period) made after the expiration of the Go-Shop Period, nothing contained in this Agreement shall prevent the Company or its board of directors from providing information (pursuant to a confidentiality agreement in reasonably customary form and which does not contain terms that prevent the Company from complying with its obligations under this Section 5.2) to or engaging in any negotiations or discussions with any Person or group who has made a bona fide Acquisition Proposal with respect to all of the outstanding shares of capital stock of the Company or all or substantially all of the assets of the Company if (x) the Company’s board of directors determines in good faith and after consultation with its financial advisors, taking into account all financial considerations, including the legal, financial, regulatory and other aspects of the Acquisition Proposal deemed relevant by the Company’s board of directors, the identity of the Person making the Acquisition Proposal, and the conditions and prospects for completing the Acquisition Proposal, that such Acquisition Proposal is reasonably likely to result in a transaction more favorable to the holders of the Shares from a financial point of view than the Merger (a “Superior Proposal”) and (y) the board of directors of the Company, after consultation with its outside legal counsel, determines in good faith that the failure to do so would result in a breach of its fiduciary obligations under applicable law. Without limiting Notwithstanding the foregoing, it is understood that any violation the parties agree that, notwithstanding the expiration of the restrictions set forth Go-Shop Period, the Company may continue to engage in the preceding two sentences activities described in Section 5.2(a)(i) and (ii) with respect to any Identified Parties, including with respect to any amended proposal submitted by such Identified Parties following the expiration of the Go-Shop Period.
(d) As of the expiration of the Go-Shop Period, the Company shall advise Parent of the identities of Identified Parties and the material terms and conditions of each Acquisition Proposal received from an Identified Party. Following the expiration of the Go-Shop Period, the Company agrees that it will notify Parent promptly (and in any officerevent within 24 hours) if any proposal or offer relating to or constituting an Acquisition Proposal is received by, director any information is requested from, or employee of any discussions or negotiations are sought to be initiated or continued with, the Company or any of its subsidiaries officers, directors, employees, agents or representatives. In connection with such notice, the Company shall indicate the identity of the Person or group making such request or inquiry or engaging in such negotiations or discussions and the material terms and conditions of any investment bankerAcquisition Proposal. Thereafter, attorney the Company shall keep Parent fully informed on a prompt basis (and in any event within 24 hours) of any material changes, additions or adjustments to the terms of any such proposal or offer. Prior to taking any action referred to in Section 5.2(c), if the Company intends to participate in any such discussions or negotiations or provide any such information to any such third party, the Company shall give prior written notice to Parent.
(e) Subject to Section 7.3(b), nothing contained in this Agreement shall prevent the Company or its board of directors from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) under the Exchange Act or making any disclosure to the Company’s stockholders if the Company’s board of directors determines in good faith that the failure to make such disclosure would result in a breach of its fiduciary duties under applicable law. From the date hereof to the Effective Time, and except as set forth in Schedule 5.5 of the Disclosure Letter, the Company shall allow all designated officers, attorneys, accountants and other advisor representatives of Parent access at all reasonable times upon reasonable notice to the records and files, correspondence, audits and properties, as well as to all information relating to commitments, contracts, titles and financial position, or representative otherwise pertaining to the business and affairs of the Company and its Subsidiaries, including inspection of such properties; provided that no investigation by Parent pursuant to this Section 5.5 shall affect any representation or any warranty given by the Company hereunder, and provided further that notwithstanding the provision of its subsidiaries information by the Company or investigation by Parent, the Company shall not be deemed to be a breach of make any representation or warranty except as expressly set forth in this Section 5.4 by the CompanyAgreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Giant Industries Inc)
No Solicitation. (a) Subject to the provisions of Section 5.2(c), from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the The Company and its subsidiaries will shall not, nor will they authorize or shall it permit any Subsidiary of their respective officersthe Company to, directorsnor shall it authorize any officer, affiliates director or employees employee of, or any investment banker, attorney or other advisor or representative retained by of, the Company or any Subsidiary of them the Company to, directly or indirectly, (i) directly or indirectly solicit, initiateinitiate or encourage the submission of, encourage or induce the making, submission or announcement of any Acquisition Company Takeover Proposal (as hereinafter defined), (ii) enter into or, other than in connection with a termination of this Agreement pursuant to Section 7.1(g), approve any agreement with respect to any Company Takeover Proposal or (iii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, to or take any other action to facilitate any inquiries or the making of any proposal that constitutes constitutes, or may reasonably be expected to lead to, any Acquisition Company Takeover Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained prior to the approval of this Agreement by the stockholders of the Company, the Company (A) following receipt of a Company Takeover Proposal from a third party, may participate in this Section 5.4 shall prohibit any discussions or negotiations (including, as a part thereof, making any counterproposal) with such third party or its agents or representatives, or furnish information with respect to the ----------------- Company to such third party or its agents or representatives pursuant to a customary confidentiality agreement, or take any such other action otherwise prohibited by clause (i) or (ii) above with respect to such third party or its agents or representatives with respect to any Company Takeover Proposal if the Company's Board of Directors of the Company from (i) in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes determines in good faith, after consultation with its outside receipt of advice from counsel, that the failure to participate in such discussions or negotiations or to furnish such information, or take such other action, may constitute a breach of its fiduciary obligations under duties under, or otherwise violate, applicable law require law, provided that the Company shall not be permitted to take any such actions with respect to any proponent of a Company Takeover Proposal after the thirtieth day following the date on which the Company's Board of Directors first makes such determination with respect to such proponent (it being understood that the Company will notify Parent promptly as to do soany such date), and (B) shall be permitted to (x) concurrently with furnishing any such nonpublic information to, or written questions take and disclose to such party, the Company gives Parent written notice of the Company's intention stockholders a position or make a recommendation with respect to furnish nonpublic informationany Company Takeover Proposal or amend or withdraw such position or amend or withdraw its position with respect to the Merger, including pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and make appropriate disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company's stockholders, in each case, if the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Company's Board of Directors of the Company concludes determines in good faith, after consultation with its outside receipt of advice from counsel, that the failure to take such action may constitute a breach of its fiduciary obligations under duties under, or otherwise violate, applicable law require it to do solaw. For purposes of this Agreement, (B) (x) concurrently with entering into negotiations with such party, "Company Takeover Proposal" means any proposal for a merger or other business combination involving the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease Subsidiaries or the acquisition or purchase of more than 25% of any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation class of the restrictions set forth in the preceding two sentences by any officer, director or employee equity securities of the Company or any of its subsidiaries Significant Subsidiaries (as hereinafter defined), or any investment bankertender offer (including self-tenders) or exchange offer that, attorney or other advisor or representative if consummated, would result in any person beneficially owning more than 25% of any class of equity securities of the Company or any of its subsidiaries shall be deemed to be Significant Subsidiaries, or a breach majority of the assets of the Company or any of its Significant Subsidiaries, other than the transactions contemplated by this Agreement. For purposes of this Section 5.4 Agreement, "Parent Takeover Proposal" means any proposal for a merger or other business combination involving Parent and its Subsidiaries or the acquisition or purchase of more than 25% of any class of equity securities of Parent or any of its Significant Subsidiaries, or any tender offer (including self-tenders) or exchange offer that, if consummated, would result in any person beneficially owning more than 25% of any class of equity securities of Parent or any of its Significant Subsidiaries, or a majority of the assets of Parent or any of its Significant Subsidiaries, other than the transactions contemplated by this Agreement. For purposes of this Agreement, "Significant Subsidiary" shall have the Companymeaning ascribed to it in Rule 1-02 of Regulation S-X promulgated under the Exchange Act.
Appears in 1 contract
Sources: Merger Agreement (Saks Holdings Inc)
No Solicitation. (a) Subject to the provisions of Section 5.2(c)3.4, from and after the date of this Agreement until the Effective Time earlier of the Initial Closing or the termination of this Agreement pursuant to Article VIIin accordance with its terms, none of the Company and its subsidiaries will notor any Company Subsidiary shall, nor will they shall it authorize or permit any of their respective its officers, trustees, directors, affiliates employees, agents or employees or any representatives (including investment bankerbankers, attorney financial advisors, attorneys, brokers, finders or other advisor or representative retained by any of them agents) (collectively, “Representatives”) to, directly or indirectly, (i) solicit, initiate, solicit or knowingly encourage or induce the making, submission or announcement facilitate (including by way of any Acquisition Proposal (as hereinafter defined), (iifurnishing nonpublic information) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal or offer that constitutes constitutes, or may would reasonably be expected to lead result in, a Competing Transaction (as defined below), or (ii) enter into discussions with, or provide any confidential information or data to, any Acquisition ProposalPerson relating to a Competing Transaction.
(b) Subject to Section 3.4, (iii) engage from and after the date of this Agreement until the earlier of the Initial Closing and the termination of this Agreement in accordance with its terms, the Company shall take, and shall cause the Company Subsidiaries to take, all actions reasonably necessary to cause their respective Representatives to, immediately cease any discussions or negotiations with any person Person other than the Purchaser and its Representatives with respect to any Acquisition Proposal, except as to a Competing Transaction.
(c) From and after the existence date of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit Agreement until the ----------------- Board of Directors earlier of the Company from (i) Initial Closing or the termination of this Agreement in response to an unsolicitedaccordance with its terms, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based onshall notify the Purchaser, among other thingspromptly following receipt, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable any written proposal (including the Board of Directors identity of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (Aparties) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing which any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms Company Subsidiaries or any of which are at least their respective Representatives may receive after the date hereof relating to a Competing Transaction and shall keep the Purchaser reasonably informed as restrictive as to the terms contained in the Confidentiality status of and any material developments regarding any such proposal.
(d) For purposes of this Agreement, and a “Competing Transaction” means any of the following (Cother than the transactions expressly provided for in this Agreement): (i) contemporaneously with furnishing any such nonpublic information to such partymerger, reorganization, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the or any Company to Parent) and Subsidiary; (ii) any direct or indirect acquisition or purchase, in response to an unsoliciteda single transaction or series of related transactions of 25% or more of the consolidated gross assets of the Company and the Company Subsidiaries, taken as a whole, or of 25% or more of any class of voting securities of the Company or the Operating Partnership, excluding any bona fide financing transactions that do not, individually or in the aggregate, have as a purpose or effect the sale or transfer of control of such assets or voting securities; or (iii) any tender offer or exchange offer that, if consummated, would result in any Person beneficially owning 25% or more of any class of voting securities of the Company or the Operating Partnership.
(e) For purposes of this Agreement, a “Superior Competing Transaction” means a bona fide written Acquisition Proposal proposal for a Competing Transaction made by a third party that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Company Board of Directors of the Company concludes determines, in good faith, faith and after consultation with its outside counselfinancial and legal advisors, that its fiduciary obligations under applicable law require it is on terms that, if consummated, are more favorable, from a financial point of view, to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of Common Stockholders than this Agreement (taking into account any changes to the Company's intention Agreement pursuant to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Company3.4).
Appears in 1 contract
No Solicitation. (a) Subject Except as expressly permitted by this Section 5.3, Greater ▇▇▇▇▇▇ and its Subsidiaries shall not, and Greater ▇▇▇▇▇▇ and its Subsidiaries shall not authorize or permit their respective representatives to, initiate, solicit or knowingly encourage or facilitate inquiries or proposals with respect to, or engage in any negotiations concerning, or provide any confidential or nonpublic information or data to, or have any discussions with, any person relating to, any Greater ▇▇▇▇▇▇ Acquisition Proposal; provided that in the event that, prior to the provisions time that Greater ▇▇▇▇▇▇’▇ shareholders’ approval of Section 5.2(c)the Greater ▇▇▇▇▇▇ Shareholder Matters (the “Greater ▇▇▇▇▇▇ Shareholder Approval”) is obtained but not after, (1) Greater ▇▇▇▇▇▇ receives, after the execution of this Agreement, an unsolicited bona fide Greater ▇▇▇▇▇▇ Acquisition Proposal from a person other than ConnectOne, and (2) Greater ▇▇▇▇▇▇’▇ Board of Directors concludes in good faith (A) that, after consulting with its financial advisor and outside legal counsel, such Greater ▇▇▇▇▇▇ Acquisition Proposal constitutes a Greater ▇▇▇▇▇▇ Superior Proposal or would reasonably be likely to result in a Greater ▇▇▇▇▇▇ Superior Proposal and (B) that, after considering the advice of outside legal counsel, failure to take such actions would be inconsistent with its fiduciary duties to Greater ▇▇▇▇▇▇’▇ shareholders under applicable Law, Greater ▇▇▇▇▇▇ may, and may permit its Subsidiaries and its and its Subsidiaries’ respective representatives to, furnish or cause to be furnished nonpublic information or data and participate in negotiations or discussions with respect to such Greater ▇▇▇▇▇▇ Acquisition Proposal; provided that prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, it shall have entered into an agreement with such third party on terms substantially similar to and no more favorable to such third party than those contained in the Confidentiality Agreement between ConnectOne and Greater ▇▇▇▇▇▇ dated March 9, 2018 (the “Confidentiality Agreement”) and any non-public information provided to any person given access to nonpublic information shall have previously been provided to ConnectOne or shall be provided to ConnectOne prior to or concurrently with the time it is provided to such person. Greater ▇▇▇▇▇▇ will (A) immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Agreement until the Effective Time with any persons other than ConnectOne with respect to any Greater ▇▇▇▇▇▇ Acquisition Proposal, (B) not terminate, waive, amend, release or termination modify any provision of this Agreement pursuant any confidentiality or standstill agreement relating to Article VII, the Company and its subsidiaries will not, nor will they authorize any Greater ▇▇▇▇▇▇ Acquisition Proposal to which it or permit any of their respective officers, directors, affiliates its Affiliates or employees representatives is a party and (C) use its commercially reasonable efforts to enforce any confidentiality or similar agreement relating to any investment banker, attorney or other advisor or representative retained by Greater ▇▇▇▇▇▇ Acquisition Proposal.
(b) Neither Greater ▇▇▇▇▇▇’▇ Board of Directors nor any of them to, directly or indirectly, committee thereof shall (i) solicit(A) withdraw (or modify or qualify in any manner adverse to ConnectOne) or refuse to make the Greater ▇▇▇▇▇▇ Board Recommendation or (B) adopt, initiateapprove, encourage recommend, endorse or induce otherwise declare advisable the making, submission or announcement adoption of any Greater ▇▇▇▇▇▇ Acquisition Proposal (as hereinafter defined)Proposal, or (ii) participate cause or permit Greater ▇▇▇▇▇▇ or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in any discussions principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or negotiations regarding, other agreement constituting or furnish to any person any non-public information with respect related to, or take any other action which is intended to facilitate any inquiries or the making of any proposal that constitutes or may is reasonably be expected likely to lead to, any Greater ▇▇▇▇▇▇ Acquisition ProposalProposal (other than a confidentiality agreement permitted by the terms of Section 5.3(a) of this Agreement). Notwithstanding the foregoing, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as prior to the existence date of these provisionsthe Greater ▇▇▇▇▇▇ Shareholders Meeting, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Greater ▇▇▇▇▇▇’▇ Board of Directors may take any of the Company from actions specified in items (i) in response to an unsolicited, and (ii) of the preceding sentence (a “Greater ▇▇▇▇▇▇ Subsequent Determination”) after the fourth (4th) Business Day following ConnectOne’s receipt of a written notice (the “Notice of Superior Proposal”) from Greater ▇▇▇▇▇▇ (A) advising that Greater ▇▇▇▇▇▇’▇ Board of Directors has decided that a bona fide unsolicited written Greater ▇▇▇▇▇▇ Acquisition Proposal that it received (that did not result from a reputable and responsible breach of this Section 5.3 or from an action by a representative of Greater ▇▇▇▇▇▇ or its Subsidiaries that would have been such a breach if committed by Greater ▇▇▇▇▇▇ or its Subsidiaries) constitutes a Superior Proposal (it being understood that Greater ▇▇▇▇▇▇ shall be required to deliver a new Notice of Superior Proposal in respect of any revised Superior Proposal from such third party for or its Affiliates that Greater ▇▇▇▇▇▇ proposes to accept), (B) specifying the material terms and conditions of, and the identity of the party making, such Superior Proposal, and (C) containing an unredacted copy of the relevant transaction agreements with the party making such Superior Proposal, if, but only if, (A) ConnectOne does not make, after being provided with reasonable opportunity to negotiate with Greater ▇▇▇▇▇▇, within three (3) Business Days of receipt of a Company Acquisition Notice of Superior Proposal, a written offer that the Board of Directors of Greater ▇▇▇▇▇▇ determines, in good faith after consultation with its outside legal counsel and financial advisors, results in the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to applicable Greater ▇▇▇▇▇▇ Acquisition Proposal no longer being a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, Proposal and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the (B) Greater ▇▇▇▇▇▇’▇ Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes reasonably determines in good faith, after consultation with and having considered the advice of outside legal counsel and its outside counselfinancial advisor, that the failure to take such actions would be inconsistent with its fiduciary obligations duties to Greater ▇▇▇▇▇▇’▇ shareholders under applicable law require it Law and that such Greater ▇▇▇▇▇▇ Acquisition Proposal is a Superior Proposal and such Superior Proposal has been made and has not been withdrawn and continues to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions be a Superior Proposal after taking into account all adjustments to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which this Agreement that are at least as restrictive as committed to in writing by ConnectOne pursuant to this Section 5.3(b). Notwithstanding the terms contained in foregoing, the Confidentiality changing, qualifying or modifying of the Greater ▇▇▇▇▇▇ Board Recommendation or the making of a Greater ▇▇▇▇▇▇ Subsequent Determination by Greater ▇▇▇▇▇▇’▇ Board of Directors shall not change the approval of Greater ▇▇▇▇▇▇’▇ Board of Directors for purposes of causing any takeover Laws (or comparable provisions of any certificate of incorporation, by-law or agreement) to be inapplicable to this Agreement, the Voting Agreements and the transactions contemplated hereby and thereby, including the Merger.
(Cc) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (In addition to the extent such nonpublic information has not been previously furnished by the Company to Parentobligations of Greater ▇▇▇▇▇▇ set forth in Sections 5.3(a) and (iib) in response to an unsolicitedof this Agreement, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood event that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company Greater ▇▇▇▇▇▇ or any of its subsidiaries Subsidiaries or any investment banker, attorney or other advisor or representative of Greater ▇▇▇▇▇▇ or its Subsidiaries receives (i) any Greater ▇▇▇▇▇▇ Acquisition Proposal or (ii) any request for non-public information or to engage in negotiations that Greater ▇▇▇▇▇▇’▇ Board of Directors believes is reasonably likely to lead to or that contemplates a Greater ▇▇▇▇▇▇ Acquisition Proposal, Greater ▇▇▇▇▇▇ promptly (and in any event within 48 hours of receipt) shall advise ConnectOne in writing of the Company existence of the matters described in clause (i) or (ii), together with the material terms and conditions of such Greater ▇▇▇▇▇▇ Acquisition Proposal or request and the identity of the person making such Greater ▇▇▇▇▇▇ Acquisition Proposal or request. Greater ▇▇▇▇▇▇ shall keep ConnectOne reasonably well informed in all material respects of the status (including after the occurrence of any material amendment or modification) of any such Greater ▇▇▇▇▇▇ Acquisition Proposal or request. Without limiting any of its subsidiaries the foregoing, Greater ▇▇▇▇▇▇ shall be deemed promptly (and in any event within 48 hours) notify ConnectOne in writing if it determines to be begin providing non-public information or to engage in negotiations concerning a breach Greater ▇▇▇▇▇▇ Acquisition Proposal pursuant to Sections 5.3(a) or (b) of this Section 5.4 by the CompanyAgreement and shall in no event begin providing such information or engaging in such discussions or negotiations prior to providing such notice.
(d) For purposes of this Agreement:
Appears in 1 contract
No Solicitation. (a) Subject to the provisions of Section 5.2(c)Selling Group and its Affiliates agree that, from and after the date of this Agreement until the Effective Time earlier of the Closing Date or the termination of this Agreement pursuant to Article VIIin accordance with Section 9.1(a)(v), the Company and its subsidiaries will they shall not, nor will they authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them to, directly or indirectly, (i) solicit, initiate, initiate or encourage offers or induce the making, submission or announcement of any Acquisition Proposal inquiries (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document nor shall Selling Group or any contractof its Affiliates authorize or permit any director, agreement officer, employee, attorney, accountant or commitment contemplating other representative or otherwise agent to solicit, initiate or encourage offers or inquiries) relating to any sale or purchase of substantially all of the assets or stock or other business combination involving CWC, other than the transactions contemplated by this Agreement (any of the foregoing offers or inquiries being referred to in this Agreement as an "Acquisition TransactionTransaction Proposal"); provided, however, however that nothing contained in this Section 5.4 Agreement shall prohibit the ----------------- prevent CWC or its Board of Directors of the Company Directors, directly or through representatives or agents acting on their behalf, from (i) furnishing information to, or entering into discussions or negotiations with, any person or entity in response to connection with an unsolicited, unsolicited bona fide written Acquisition Transaction Proposal from by such person or entity, if and only to the extent that such Acquisition Transaction Proposal would, if consummated, result in a reputable and responsible third party for a Company Acquisition transaction that would be, in the reasonable good faith judgment of the Board of Directors of CWC, a more favorable transaction than the Company has reasonably concluded transactions contemplated by this Agreement.
(based on, among other things, the advice b) Selling Group shall notify Buyer no later than forty-eight (48) hours after receipt by Selling Group (or its advisors) of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic an Acquisition Transaction Proposal or any request for information in connection with an Acquisition Transaction Proposal or for access to the party making such Acquisition Proposalproperties, and submitting to books or records of CWC. If the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material financial terms of such Acquisition Transaction Proposal so as to enable the Board are modified, then Selling Group shall notify Buyer of Directors any such modifications within forty-eight (48) hours of the Company to make a determination whether to construe receipt of such modification.
(c) If any Acquisition Transaction Proposal as a Superior Offer, to is made between the extent that (A) date hereof and the Board termination of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality this Agreement, and (C) contemporaneously with furnishing any such nonpublic information this Agreement is terminated by Buyer pursuant to such partySection 9.1(e), the Company furnishes such nonpublic information then Selling Group shall pay to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes Buyer a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained termination fee in the Confidentiality Agreement. The Company amount of seven hundred fifty thousand dollars ($750,000) prior to, and its subsidiaries will immediately cease any and all existing activitiesas a condition to, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation effectiveness of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Companysuch termination.
Appears in 1 contract
No Solicitation. (a) Subject to the provisions of Section 5.2(c), from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the The Company and its subsidiaries will shall not, nor will they shall it permit or authorize or permit any of their respective officers, directors, affiliates or employees its Subsidiaries or any investment bankerofficer, attorney director, employee, accountant, counsel, financial advisor, agent or other advisor representative of the Company or representative retained by any of them its Subsidiaries (collectively, the "Company Representatives") to, (i) solicit or initiate, or encourage, directly or indirectly, (i) solicitany inquiries regarding or the submission of, initiate, encourage or induce the making, submission or announcement of any Acquisition Takeover Proposal (as hereinafter defineddefined below), (ii) participate in any discussions or negotiations regarding, or furnish to any person Person any non-public information or data with respect to, or take any other action to knowingly facilitate any inquiries or the making of any proposal that constitutes constitutes, or may reasonably be expected to lead to, any Acquisition Proposal, Takeover Proposal or (iii) engage in discussions with enter into any person agreement with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Takeover Proposal or (v) enter into approve or resolve to approve any letter of intent or similar document or any contractTakeover Proposal; PROVIDED, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, howeverHOWEVER, that nothing contained in this Section 5.4 4.3 or any other provision of this Agreement shall prohibit the ----------------- Company or its Board of Directors of the Company from (i) in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) taking and disclosing to the Board 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 or Item 1012(a) of Directors of Regulation MA promulgated under the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, Securities Exchange Act or (B) (x) concurrently with furnishing any making such nonpublic information todisclosure to the Company's stockholders as, or written questions to such party, in the Company gives Parent written notice good faith judgment of the Company's intention to furnish nonpublic informationBoard of Directors, after receiving advice from outside counsel, is required under applicable Laws and Regulations; PROVIDED that the Company may not, except as permitted by Section 4.3(b), withdraw or modify, or written questions propose to such party and (y) withdraw or modify, its approval or recommendation of this Agreement or the Company receives from such party an executed confidentiality transactions contemplated hereby, including the Merger, or approve or recommend, or propose to approve or recommend any Takeover Proposal, or enter into any agreement containing customary limitations on the use and disclosure with respect to any Takeover Proposal. Upon execution of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality this Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by shall, and it shall cause the Company to Parent) and (ii) in response to an unsolicitedRepresentatives to, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Takeover Proposal. Without limiting Notwithstanding the foregoing, it is understood that any violation prior to approval of the restrictions set forth Agreement by the stockholders of the Company, the Company may furnish information concerning its business, properties or assets to any Person or group pursuant to confidentiality agreements with terms and conditions at least as restrictive on such Person or group as the Confidentiality Agreement is on Parent, and may negotiate and participate in discussions and negotiations with such Person or group concerning a Takeover Proposal if: (x) such Person or group has submitted a Superior Proposal, which is pending at the preceding two sentences by any officer, director or employee time the Company determines to take such action; and (y) the Board of Directors of the Company determines in good faith, based upon advice of outside counsel, that such action is required to discharge the Company's Board of Director's fiduciary duties to the Company's stockholders under the Delaware Law. The Company shall not release or permit the release of any Person from, or waive or permit the waiver of any provision of, any such confidentiality agreement or any other confidentiality, standstill or similar agreement to which the Company is a party or under which the Company has any rights. The Company will promptly (and in any event within one (1) business day) advise Parent in writing of its subsidiaries the existence of any proposal, discussion, negotiation or inquiry received by the Company with respect to any investment bankerTakeover Proposal, attorney and the Company will promptly communicate to Parent the material terms and conditions of any proposal, discussion, negotiation or other advisor inquiry which it may receive and the identity of the Person or representative of group making such proposal or inquire or engaging in such discussions or negotiations. The Company will promptly provide to Parent any non-public information concerning the Company or its Subsidiaries provided to any other Person or group which was not previously provided to Parent. The Company will keep Parent reasonably informed of its subsidiaries shall be deemed to be a breach the status and details of any such Takeover Proposal. As used in this Section 5.4 by Agreement, the Company.following terms have the meanings set forth below:
Appears in 1 contract
Sources: Merger Agreement (E Loan Inc)
No Solicitation. During the period commencing on the date hereof and ending on the Termination Date, except for the matters set forth on Schedule 6.1 (b):
(a) Subject to the provisions of Section 5.2(c)Neither any Seller, from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company and its subsidiaries will not, any Casablanca Subsidiary nor will they authorize or permit any of its or their respective officersAffiliates shall, directors, affiliates or employees or and each of the foregoing shall not allow any investment banker, attorney or other advisor or representative retained by any of them Person acting on its behalf to, directly or indirectly, continue, initiate, encourage, solicit or participate in discussions or negotiations with, or provide any nonpublic information to, any Person (other than the Buyer and its representatives in connection with the transactions contemplated by this Option Agreement or the other Transaction Documents) concerning (i) solicit, initiate, encourage or induce the making, submission or announcement any sale of assets of any Acquisition Proposal Casablanca Subsidiary (as hereinafter definedother than in the ordinary course of its business and consistent with past practice), (ii) participate any sale of any securities of any Casablanca Subsidiary including, without limitation, the Casablanca Units, (iii) any other transaction including, without limitation, a merger, consolidation, recapitalization, liquidation or similar transaction, directly involving any Casablanca Subsidiary (collectively, an “Acquisition Transaction”) or (iv) enter into any agreement, understanding or arrangement with respect to an Acquisition Transaction. In addition to the foregoing, no Seller shall agree to engage in any discussions or negotiations regardingAcquisition Transaction unless the terms thereof expressly exclude the Casablanca Subsidiaries and the transactions contemplated by the Transaction Documents. Sellers shall advise their financial advisors of Sellers’ obligations pursuant to this Section 6.4 and instruct such advisors not to take any action in contravention hereof.
(b) Sellers shall, or furnish to any person any non-public information with respect and each of them, shall cause each Casablanca Subsidiary to, or take any other action promptly communicate to facilitate any inquiries or the making Buyer within three (3) Business Days following receipt the terms of any proposal that constitutes any of its officers or directors or Persons serving similar capacities may receive after the date of this Option Agreement in respect of an Acquisition Transaction. Any notification under this Section 6.4 (b) shall include the identity of each Person making such proposal, the terms of such proposal and any other information with respect thereto as the Buyer may reasonably request.
(c) Sellers hereby agree that a monetary remedy for a breach of the agreements set forth in this Section 6.4 will be expected inadequate and impracticable, and that any such breach would cause the Buyer and its Affiliates irreparable harm. In the event of a breach of this Section 6.4, in addition to lead toany other remedies available to the Buyer, without the requirement of posting any Acquisition Proposalbond or other security, (iii) engage the Buyer shall be entitled to seek equitable remedies in discussions a court of competent jurisdiction regarding this Section 6.4, including, without limitation, the equitable remedy of specific performance with any person respect to the provisions of this Section 6.4, and shall be entitled to such injunctive relief, including temporary restraining orders, preliminary injunctions and permanent injunctions, as a court of competent jurisdiction shall determine with respect to any Acquisition Proposal, except as to such breach of the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transactionagreements set forth in this Section 6.4; provided, however, that, in the event that nothing contained the Buyer terminates this Option Agreement pursuant to Section 1.1(e), the Buyer’s sole and exclusive remedy in respect of such termination (including any breach by Sellers, any Casablanca Subsidiary or any of their respective Affiliates of the agreements set forth in this Section 5.4 6.4) shall prohibit the ----------------- Board of Directors of the Company from (i) be to pursue an action against Sellers for Damages as provided in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition ProposalSection 10.2, and submitting to neither any Seller, any Casablanca Subsidiary nor any of their respective Affiliates shall have any further obligations or liabilities under this Option Agreement except as otherwise provided in Section 10.2.
(d) For the party making such Acquisition Proposal written questionsavoidance of doubt, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make any breach by a determination whether to construe such Acquisition Proposal as a Superior OfferSeller, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company Casablanca Subsidiary or any of its subsidiaries or their respective Affiliates of any investment banker, attorney or other advisor or representative provision of the Company or any of its subsidiaries Section 6.4(a) that is not cured within five (5) Business Days shall be deemed to be a material breach of this Section 5.4 Option Agreement and, for purposes of the exercise by the CompanyBuyer of its termination rights pursuant to Section 10.1(e), after such cure period such breach shall be deemed incapable of being cured prior to the Termination Date.
Appears in 1 contract
No Solicitation. Except as expressly permitted by this Section 7.2 and except as may relate to any Excluded Party, (ai) Subject to from 12:00 a.m., New York time, on September 10, 2020 (i.e., one minute after 11:59 p.m., New York time, on September 10, 2020) (the provisions of Section 5.2(c), from and after the date of this Agreement “No-Shop Period Start Date”) until the Effective Time or or, if earlier, the termination of this Agreement pursuant to in accordance with Article VIIIX, the Company and its subsidiaries will shall not, nor will they and shall cause each of its Subsidiaries and shall use commercially reasonable efforts to cause its and their respective Representatives not to (and shall not authorize or permit any of knowingly give permission to its and their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them Representatives to), directly or indirectly, :
(i) solicit, initiateinitiate or knowingly facilitate or knowingly encourage (including by way of furnishing non-public information) any inquiries regarding, encourage or induce the makingmaking of, any submission or announcement of a proposal or offer that constitutes, or could reasonably be expected to lead to, any Acquisition Proposal (as hereinafter defined), Proposal;
(ii) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person other Person any non-public information in connection with respect to, or take any other action to facilitate any inquiries for the purpose of encouraging or the making of any proposal that constitutes or may reasonably be expected to lead tofacilitating, any Acquisition Proposal, ;
(iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend recommend, or propose publicly to approve, endorse or recommend, any Acquisition Proposal or Proposal;
(viv) enter into any letter of intent or similar document or any contractintent, memorandum of understanding, acquisition agreement, merger agreement or commitment contemplating or otherwise other similar agreement (other than an Acceptable Confidentiality Agreement) relating to any Acquisition Transaction; provided, however, that nothing contained Proposal (an “Alternative Acquisition Agreement”);
(v) take any action to make the provisions of any Takeover Law or any restrictive provision of any applicable anti-takeover provision in this Section 5.4 shall prohibit the ----------------- Board of Directors Organizational Documents of the Company from inapplicable to any transactions contemplated by any Acquisition Proposal; or
(ivi) in response authorize, commit to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that or agree to do any of the Board foregoing. Notwithstanding the commencement of Directors the obligations of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputationunder this Section 7.2(b), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to on the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such partyNo-Shop Period Start Date, the Company gives Parent written notice and its Subsidiaries and their respective Representatives may (acting under the direction of the Company's intention Special Committee) continue to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained engage in the Confidentiality Agreement, and activities described in clauses (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parenti) and (ii) in response of Section 7.2(a) with respect to an unsolicitedeach Excluded Party on and after the No-Shop Period Start Date until 11:59 p.m., bona fide written Acquisition Proposal that constitutes a Superior OfferNew York time, engaging in negotiations on September 25, 2020 (the “Cut Off Time”), including with respect to any amended or revised proposal submitted by such Excluded Party on or after the party making such Acquisition Proposal to No-Shop Period Start Date and before the extent that (A) Cut Off Time. On the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such partyNo-Shop Period Start Date, the Company gives Parent written notice shall and shall cause each of the Company's intention its Subsidiaries and shall use commercially reasonable efforts to enter into negotiations with such party cause its and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished their respective Representatives to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and cause to be terminated all existing activities, discussions or and negotiations with any Person (other than any Excluded Party and the parties conducted heretofore hereto and their respective Representatives) that may be ongoing with respect to any Acquisition Proposal. Without limiting The Company shall as promptly as reasonably practicable following the foregoing, it No-Shop Period Start Date (x) deliver a written notice to each such Person to the effect that the Company is understood that ending all discussions and negotiations with such Person with respect to any violation of Acquisition Proposal and the restrictions set forth in notice shall also request such Person to promptly return or destroy all confidential information concerning the preceding two sentences Company and its Subsidiaries furnished to such Person by any officer, director or employee on behalf of the Company or any of its subsidiaries Subsidiaries prior to the No-Shop Period Start Date, and (y) terminate access to any physical or electronic data rooms relating to any investment bankerpotential Acquisition Proposal. No later than two (2) Business Days after the No-Shop Period Start Date, attorney or other advisor or representative the Company shall notify Parent of the Company or number of Excluded Parties and the material terms and conditions of any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the CompanyAcquisition Proposal received from any Excluded Party (including any changes thereto).
Appears in 1 contract
Sources: Merger Agreement (Cellular Biomedicine Group, Inc.)
No Solicitation. (a) Subject to the provisions of Section 5.2(c), from and after From the date of this Agreement hereof until the Effective Time or earlier of the termination of this Agreement pursuant to Article VIIits terms and the Closing Date, the Company and its subsidiaries will not, nor and will they authorize or permit any of their respective cause the officers, managers, directors, affiliates or employees or any investment bankeremployees, attorney or other advisor or representative retained by any financial advisors, representatives, agents and 50 Affiliates of them the Company (“Company Representatives”) not to, directly or indirectly, (i) take any action to solicit, initiate, encourage or induce the makingseek, submission or announcement of any Acquisition Proposal (as hereinafter defined)entertain, (ii) encourage, support, assist, participate in any discussions negotiations or negotiations communications regarding, or cooperate with any inquiry, proposal or offer from, or furnish to any person any non-public information with respect to, any third party regarding any merger, recapitalization or take consolidation with or involving the Company or its Subsidiaries or any acquisition of membership interests or stock, or right to acquire membership interests or stock (including any conversion right) or acquisition or exclusive license of any assets of the Company or its Subsidiaries or any debt or equity financing transaction of any nature (including the filing of a registration statement with the SEC) or any other action similar transaction, the consummation of which would interfere with the Company’s ability to facilitate consummate the transactions contemplated hereby (an “Acquisition Transaction”). Upon execution of this Agreement, the Company will, and will cause Company Representatives to, immediately cease and cause to be terminated any inquiries existing direct or indirect discussions with any Person (other than Parent) that are in respect of an Acquisition Transaction. In no event will the making Company, during the period from the date hereof until the earlier of the termination of this Agreement pursuant to its terms and the Closing Date, either accept or enter into any proposal agreement concerning an Acquisition Transaction or engage in any communications that constitutes or may could reasonably be expected to lead to an acceptance or entering into of an agreement concerning any Acquisition Transaction. Nothing in this Section 4.6 shall limit discussion between and among the Company and the Company Representatives. From the date hereof until the earlier of the termination of this Agreement pursuant to its terms and the Closing Date, the Company will, and will cause the officers, managers, directors, employees, financial advisors, representatives, agents and Affiliates of the Company to, promptly (and in no event later than two (2) Business Days after receipt thereof) notify Parent orally and in writing of any proposal for, or inquiry respecting, any Acquisition ProposalTransaction or any request for nonpublic information in connection with such proposal or inquiry, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as or for access to the existence of these provisionsproperties, (iv) approvebooks, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors records of the Company from (i) by any person or entity that informs the Company that it is considering making, or has made, such a proposal or inquiry. Such notice must be accompanied by a copy of any written proposal, and in response to an unsolicitedthe absence of a written proposal, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that will indicate the Board of Directors identity of the Company has reasonably concluded (based on, among other thingsperson or entity making the proposal or inquiry, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to total consideration and the party making such Acquisition Proposal, terms and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms conditions of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes proposal or inquiry in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreementreasonable detail. The Company will keep Parent informed on a reasonably current basis (and, in any event, within two (2) Business Days) of the status and its subsidiaries will immediately cease details of any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect material modifications to any Acquisition Proposal. Without limiting the foregoingsuch proposal, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director offer or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Companyrequest.
Appears in 1 contract
Sources: Merger Agreement
No Solicitation. (a) Subject to During the provisions period beginning on the date of Section 5.2(c), from this Agreement and continuing until 11:59 p.m. (New York time) on the date that is 30 days after the date of this Agreement until (the Effective Time or termination of this Agreement pursuant to Article VII“Solicitation Period End Date”), the Company Company, its Subsidiaries, and its subsidiaries will not, nor will they authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them Representatives shall have the right to, directly or indirectly, indirectly (i) solicit, initiateinitiate or encourage any inquiry with respect to, encourage or induce the making, submission or announcement of of, any Acquisition Proposal (as hereinafter defined), and (ii) participate in any discussions or negotiations regarding, or and furnish to any person any non-public Person information with respect to, or and take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may lead to, an Acquisition Proposal; provided, however, that the Company shall not, and shall not authorize or permit any of its Subsidiaries or any Representative of the Company or its Subsidiaries to, provide to any Person any material non-public information unless the Company receives from such third party an executed confidentiality agreement with confidentiality provisions (including customary standstill and non-solicitation provisions for such a transaction) in form no more favorable, in the aggregate, to such Person than those confidentiality provisions contained in the Confidentiality Agreement, provided that the Company shall promptly provide to Purchaser any material non-public information concerning the Company or its Subsidiaries that is provided to any Person given such access but which was not previously provided to Purchaser and its Representatives. Purchaser agrees that, during the period from the date hereof to and including the tenth (10th) Business Day after the Solicitation Period End Date, neither it nor any Affiliate or Subsidiary of Purchaser shall, and that it shall use its reasonable best efforts to cause its and their respective Representatives not to, knowingly interfere with or knowingly participate in discussions with, any Person that has made, or is considering or participating in discussions or negotiations with the Company, its Subsidiaries or their respective Representatives regarding, an Acquisition Proposal.
(b) Subject to the provisions of this Section 6.5, and except as it may relate to any Person or group of related Persons from whom the Company has received, prior to the Solicitation Period End Date, a bona fide Acquisition Proposal that the Board of Directors determines in good faith (such determination to be made on or prior to the Solicitation Period End Date), after consultation with its outside legal counsel and independent financial advisor, constitutes or could reasonably be expected to result in a Superior Proposal, including adequate sources of financing (each such Person or group, an “Excluded Party”; provided, however, that any such Person or group shall cease to be an Excluded Party at such time after the Solicitation Period End Date as negotiations between the Company and such Person or group with respect to Acquisition Proposal(s) made by such Person or group shall have terminated), (A) on the Solicitation Period End Date, the Company shall, and shall cause its Subsidiaries to, and shall direct its and their respective Representatives to, immediately cease any solicitation, encouragement, discussions or negotiations with any parties that may be ongoing with respect to any Acquisition Proposal and (B) during the period beginning on the Solicitation Period End Date and continuing until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VIII, the Company agrees that neither it nor any Subsidiary of the Company shall, and that it shall direct its and their respective Representatives not to, directly or indirectly, (i) solicit, participate in, initiate, knowingly facilitate or encourage (including by way of furnishing information), or knowingly take any other action designed or reasonably likely to facilitate or encourage, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition ProposalProposal (including by way of making any public announcement of its intention to do any of the foregoing), (iiiii) engage participate in any discussions with any person with respect to or negotiations (including by way of furnishing information) regarding any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (viii) enter into any letter agreement (or agreement in principle) with respect to an Acquisition Proposal (other than a confidentiality agreement contemplated by Section 6.5(c)). No later than two (2) Business Days after the Solicitation Period End Date, the Company shall notify Purchaser in writing of intent or similar document the identity of each Excluded Party and shall promptly provide to Purchaser a copy of any Acquisition Proposal made in writing provided to the Company or any contractof its Subsidiaries prior to the Solicitation Period End Date and a written summary of the material terms of any such Acquisition Proposal not made in writing.
(c) Notwithstanding the limitations set forth in Section 6.5(b), agreement or commitment contemplating or otherwise relating to at any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit time from the ----------------- Board Solicitation Period End Date and continuing until the earlier of Directors the receipt of the Company from (i) in response Shareholder Approval and the termination of this Agreement pursuant to Article VIII, if the Company or any of its Representatives receives an unsolicited, bona fide unsolicited written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes determines in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do solegal counsel and independent financial advisor, (Bi) constitutes a Superior Proposal or (ii) could reasonably be expected to result in a Superior Proposal, then the Company may take the following actions: (x) concurrently with furnish non-public information to the Person making such Acquisition Proposal (if, and only if, prior to so furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party the Person an executed confidentiality agreement containing with confidentiality provisions (including customary limitations on standstill and non-solicitation provisions for such a transaction) in form no more favorable in the use and disclosure of all nonpublic written and oral information furnished aggregate to such party on behalf of the Company, the terms of which are at least as restrictive as the terms Person than those confidentiality provisions contained in the Confidentiality Agreement, ) and (Cy) contemporaneously engage in discussions or negotiations with furnishing any such nonpublic information Person with respect to such partyAcquisition Proposal.
(d) The Company shall promptly (and in any event no later than 48 hours) notify Purchaser in the event that the Company, its Subsidiaries or Representatives receives (i) any Acquisition Proposal or (ii) any inquiry or request for discussions or negotiations regarding any Acquisition Proposal, including during the period from the date of this Agreement to the Solicitation Period End Date. The Company shall notify Purchaser promptly (and in any event no later than 48 hours) of the identity of such Person and provide a copy of such Acquisition Proposal, inquiry or request (or, where no such copy is available, a written description of such Acquisition Proposal, inquiry or request), including any material modifications thereto or to any Acquisition Proposal made by an Excluded Party. The Company shall keep Purchaser reasonably informed on a current basis (and in any event no later than 48 hours) after the occurrence of any material changes or developments of the status of any Acquisition Proposal, inquiry or request (including the material terms and conditions thereof and of any material modification thereto). Without limiting the foregoing, the Company furnishes shall promptly (within 48 hours) notify Purchaser orally or in writing if it determines to begin providing or making available information or to engage in discussions or negotiations concerning an Acquisition Proposal pursuant to Section 6.5(c). The Company agrees that it will not enter into any confidentiality agreement with any person subsequent to the date hereof which prohibits the Company from providing any such nonpublic information to Parent (Purchaser. Notwithstanding the foregoing, during the period from the date of this Agreement to the extent such nonpublic information has not been previously furnished by Solicitation Period End Date, the Company shall not be required to Parent) and (ii) in response to disclose the identity of the Person making an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in nor shall the Company be required to keep Purchaser informed as to the status of any discussions or negotiations with such Person unless there has been a material modification to the party making such financial terms of the Acquisition Proposal to or in the extent that (A) event the Board of Directors of the Company concludes determines in good faith, after consultation with its outside counsellegal counsel and independent financial advisor, that its fiduciary obligations under applicable law require it such Acquisition Proposal (i) constitutes a Superior Proposal or (ii) could reasonably be expected to do so, result in a Superior Proposal in which case the Company shall promptly (Bwithin 48 hours) notify Purchaser orally or in writing of such facts.
(xe) concurrently Other than in accordance with entering into negotiations with such partythis Section 6.5, the Company gives Parent written notice Board of Directors shall not (i) change, qualify, withdraw or modify, or propose publicly to change, qualify, withdraw or modify, in a manner adverse to Purchaser, the approval or recommendation by the Board of Directors of the Company's intention Merger or this Agreement or the other Transactions contemplated hereby; (ii) approve, adopt or recommend, or propose publicly to approve, adopt or recommend, any Acquisition Proposal; (iii) make any recommendation in connection with a tender offer or exchange offer other than a recommendation against such offer (each of the foregoing, a “Change of Recommendation”); or (iv) authorize the Company to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality any letter of intent, merger, acquisition, or similar agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal other than any confidentiality agreement to be entered into by the Company as contemplated by this Section 6.5 (each a “Company Acquisition Agreement:”); provided, however, that, in response to the receipt of a Superior Proposal that has not been withdrawn or abandoned, the Board of Directors may, at any time prior to obtaining the Company Shareholder Approval, make either (x) a Change of Recommendation and/or (y) terminate this Agreement in accordance with Section 8.1(c) to enter into a Company Acquisition Agreement with respect to such Superior Proposal (a “Superior Termination”); provided further, that, the Board of Directors may not effect such Change of Recommendation or a Superior Termination, in each case in connection with a Superior Proposal. Without limiting , unless both of the foregoingfollowing conditions have been met:
(i) the Company shall have provided prior written notice to Purchaser, at least five (5) Business Days in advance (or three (3) Business Days if such written notice is provided on or prior to the Solicitation Period End Date) (as applicable, the “Notice Period”), of its intention to effect a Change of Recommendation and/or Superior Termination in response to such Superior Proposal, which notice shall in addition specify the material terms and conditions (including price) of any such Superior Proposal (including the identity of the Person or group of Persons making the Superior Proposal), and contemporaneously with providing such notice shall have provided a copy of the relevant proposed acquisition agreement and other material documents related thereto (provided that no information need be provided regarding the terms, structure or other financial information regarding any debt financing commitments) with the party making such Superior Proposal (all such addition specified information being deemed the “Superior Proposal Information”); and
(ii) prior to effecting such Change of Recommendation and/or Superior Termination in response to a Superior Proposal, the Company shall, and shall cause its legal and financial advisors to, during the Notice Period, negotiate with Purchaser in good faith (to the extent Purchaser desires to negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal.
(f) In the event that during the Notice Period any revisions are made to the Superior Proposal to which the final proviso of Section 6.5(e) applies and the Board of Directors or any committee thereof in its good faith judgment determines such revisions are material (it is understood being agreed that any violation change in the purchase price in such Superior Proposal shall be deemed a material revision), the Company shall be required to deliver a new written notice to Purchaser and Merger Sub and to comply with the requirements of such proviso with respect to such new written notice, except that the Notice Period shall be reduced to three (3) Business Days (or two (2) Business Days if the first Notice Period under Section 6.5(e) initially commences on or prior to the Solicitation Period End Date). Notwithstanding anything to the contrary in this Agreement, no “stop-look-and-listen” communication to the Company’s shareholders of the restrictions set forth nature contemplated by Rule 14d-9 of the Exchange Act shall be deemed to constitute a Change of Recommendation.
(g) Nothing in this Agreement shall prohibit or restrict the preceding two sentences by Board of Directors from making a Change of Recommendation to the extent that the Board of Directors determines in good faith, for reasons not related to the receipt of an Acquisition Proposal, after consultation with the Company’s outside legal counsel, that the failure of the Board of Directors to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Legal Requirements.
(h) For purposes of this Agreement, “Acquisition Proposal” shall mean any officerinquiry, director proposal or employee offer from any Person (other than Purchaser and its Subsidiaries) relating to, in a single transaction or series of related transactions, any (A) acquisition of assets of the Company and its Subsidiaries (including securities of Subsidiaries, but excluding sales of assets in the ordinary course of business) equal to 20% or more of the Company’s consolidated assets or to which 20% or more of the Company’s revenues or earnings on a consolidated basis are attributable, (B) acquisition of 20% or more of the outstanding Company Shares, (C) tender offer or exchange offer that if consummated would result in any Person beneficially owning 20% or more of its subsidiaries the outstanding Company Shares, (D) merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or (E) any investment bankercombination of the foregoing types of transactions if the sum of the percentage of consolidated assets, attorney consolidated revenues or earnings and Company Shares involved is 20% or more; in each case, other advisor or representative than the Transactions. As used in this Agreement, “Superior Proposal” shall mean any bona fide written Acquisition Proposal on terms which the Board of Directors of the Company determines in good faith, after consultation with the Company’s outside legal counsel and independent financial advisor, to be more favorable from a financial point of view to the holders of Company Shares than the Merger, taking into account all the terms and conditions of such proposal (including the likelihood and timing of consummation thereof), and this Agreement (including any changes to the terms of this Agreement proposed by Purchaser to the Company in writing in response to such proposal or any otherwise), provided that for purposes of its subsidiaries the definition of “Superior Proposal”, the references to “20%” in the definition of Acquisition Proposal shall be deemed to be a breach of this Section 5.4 by the Companyreferences to “65%”.
Appears in 1 contract
Sources: Merger Agreement (Eci Telecom LTD/)
No Solicitation. (a) Subject to Without the provisions prior written consent of Section 5.2(c)Parent, from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VIIhereof, the Company and its subsidiaries will not, nor and will they not authorize or permit any of the Subsidiaries or their respective officers, directors, affiliates or employees or any investment bankeremployees, attorney or financial advisors, agents and other advisor or representative retained by any of them representatives ("REPRESENTATIVES") to, directly or indirectly, (i) solicit, initiate, initiate or encourage or induce the making, submission or announcement (including by way of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any person any furnishing non-public information with respect to, information) or take any other action to facilitate knowingly any inquiries or the making of any proposal that which constitutes or may reasonably be expected to lead to, to an Acquisition Proposal (as defined herein) from any Acquisition Proposal, person or (iiiii) engage in discussions with any person with respect discussion or negotiations relating to any Acquisition Proposal; PROVIDED, except as HOWEVER, that notwithstanding any other provision hereof, the Company may, (A) at any time prior to the existence of these provisions, time the Company's shareholders shall have voted to approve this Agreement engage in discussions or negotiations with a third party (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors of and may furnish such third party information concerning the Company from and its business, properties and assets to such party) who (iwithout any solicitation, initiation, encouragement, discussion or negotiation, directly or indirectly, by or with the Company or the Representatives after the date hereof) in response to makes an unsolicited, unsolicited bona fide written Acquisition Proposal from a reputable if, and responsible only to the extent that, (1) the third party for a has first made an Acquisition Proposal that is financially superior, with respect to the holders of the Company Acquisition Common Stock generally, to the transactions contemplated by this Agreement and has demonstrated that the funds necessary for the Acquisition Proposal are reasonably likely to be available (as determined in good faith in each case by the Company's Board of Directors of the Company has reasonably concluded after consultation with its financial advisors) (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such an Acquisition Proposal, a "SUPERIOR PROPOSAL"), and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Company's Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes shall conclude in good faith, after consultation with its considering applicable provisions of state law on the basis of advice of outside counsel, that such action is necessary for the Board of Directors to avoid breaching its fiduciary obligations duties to the shareholders of the Company under applicable law require it to do solaw, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y2) prior to furnishing such information to or entering into discussions or negotiations with such person or entity, the Company receives from such party person or entity an executed confidentiality agreement containing customary limitations on in substantially the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least same form as restrictive as the terms contained in the Confidentiality Agreement, and (C3) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations shall have fully complied with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, this Section 4.14; and/or (B) (x) concurrently comply with entering into negotiations Rule 14e- 2 promulgated under the Exchange Act with such partyregard to a tender or exchange offer. As used herein, "ACQUISITION PROPOSAL" shall mean a proposal or offer for a tender or exchange offer, merger, consolidation or other business combination involving the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease or any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee Subsidiary of the Company or any proposal to acquire in any manner a substantial equity interest in, or a substantial portion of its subsidiaries or any investment bankerthe assets of, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the CompanySubsidiary thereof.
Appears in 1 contract
No Solicitation. (a) Subject The Company shall not, directly or indirectly, through any officer, director, representative or agent of the Company or any of its subsidiaries, and the Company shall use its best efforts to ensure that the provisions employees of Section 5.2(c), from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company and its subsidiaries will do not, nor will they authorize solicit or permit any encourage the initiation of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained (including by any way of them to, directly or indirectly, (ifurnishing information) solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or proposals regarding any merger, sale of assets, sale of shares of capital stock (including, without limitation, by way of a tender offer) or similar transactions involving the making Company or any subsidiaries of the Company that if consummated would constitute an Alternative Transaction (as defined in Section 7.01) (any proposal that constitutes of the foregoing inquiries or may reasonably be expected proposals being referred to lead to, any herein as an "Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing "). Nothing contained in this Section 5.4 Agreement shall prohibit prevent the ----------------- Board of Directors of the Company from (i) in response furnishing information to an unsolicited, a third party which has made a bona fide written Acquisition Proposal from that is a reputable and responsible Superior Proposal (as defined below) not solicited in violation of this Agreement, provided that such third party for has executed an agreement with confidentiality provisions substantially similar to those then in effect between the Company and Parent (except that such agreement may permit such third party, consistent with the other terms hereof, to present one or more further proposals to the Board of Directors of the Company), (ii) subject to compliance with the other terms of this Section 4.02, including Section 4.02(c), considering and negotiating a bona fide Acquisition Proposal that is a Superior Proposal not solicited in violation of this Agreement, (iii) following receipt of an Acquisition Proposal, taking and disclosing to its stockholders a position as required by Rules 14d-9 and 14e-2(a) of the Exchange Act or otherwise making disclosure to the Company's stockholders to the extent required by applicable law and (iv) following receipt of an Acquisition Proposal that is a Superior Proposal, modifying its recommendations referred to in Section 5.02 (subject to the terms of such Section 5.02); provided, however, that, as to each of clauses (i) and (ii), (x) such actions occur at a time prior to approval of the Merger and this Agreement at the Company Acquisition that Stockholders Meeting (or, if the Merger has not been consummated within 30 days after the Company Stockholders Meeting (except by reason of the Company's failure to fulfill any obligation under this Agreement), such actions occur more than 30 days after such Company Stockholders Meeting) and (y), as to each of clauses (i), (ii), (iii) and (iv), the Board of Directors of the Company has reasonably concluded determines in good faith (based on, among other things, on the advice of a financial advisor of nationally recognized reputationindependent counsel), that there is reasonably expected a reasonable risk that the Board of Directors would be required to lead do so in order to discharge properly its fiduciary duties. For purposes of this Agreement, a "Superior OfferProposal" means any proposal made by a third party to acquire, furnishing nonpublic information directly or indirectly, for consideration consisting of cash and/or securities, all of the equity securities of the Company entitled to vote generally in the party making such Acquisition Proposalelection of directors or all or substantially all the assets of the Company, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of on terms which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company in good faith determines to make be more favorable from a financial point of view to its stockholders than the Merger and the transactions contemplated by this Agreement taking into account at the time of determination whether to construe such Acquisition Proposal as a Superior Offer, any changes to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the financial terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished this Agreement proposed by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Company.
Appears in 1 contract
No Solicitation. (a) Subject to the provisions of The Company agrees that, except as permitted by Section 5.2(c6.6(b) and 6.6(c), from and after the date of this Agreement until the earlier of the Effective Time or termination of the date on which this Agreement is terminated pursuant to Article VIISection 8.1 hereof, the Company and its subsidiaries will it shall not, nor will they shall it authorize or permit any of their respective officers, directors, affiliates or employees its Subsidiaries or any investment banker, attorney of its or other advisor or representative retained by any of them to, their Representatives to directly or indirectly, : (i) solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition an Alternative Transaction Proposal (as hereinafter definedor inquiries, proposals or offers or other efforts or attempts that may reasonably be expected to lead to Alternative Transaction Proposals), (ii) participate in any discussions or negotiations regardingincluding, or furnish without limitation, by way of public disclosure and by way of providing access to any person any non-public information to any Person; (ii) provide any material non-public information concerning the Company or its Subsidiaries to any Person in connection with respect toan Alternative Transaction Proposal; or (iii) engage in any discussion or negotiation with any third party concerning an Alternative Transaction Proposal (or inquiries, proposals or offers or other efforts or attempts that may reasonably be expected to lead to Alternative Transaction Proposals) or otherwise cooperate with, assist or participate in, facilitate, or take any other action in connection with any such inquiries, proposals, discussions or negotiations. Notwithstanding the foregoing, the Company agrees that it shall, and shall cause its Subsidiaries and its and their respective Representatives to facilitate immediately cease and cause to be terminated any inquiries solicitation, encouragement, discussion or negotiation with such Person conducted theretofore by the making Company, its Subsidiaries or any of their respective Representatives with respect to any proposal Alternative Transaction Proposal and shall use reasonable best efforts to require such Person to promptly return or destroy any confidential information previously furnished by the Company, any of its Subsidiaries or any of their respective Representatives.
(b) Notwithstanding anything to the contrary contained in Section 6.6(a), in the event that, prior to the receipt of Stockholder Approval, the Company receives an unsolicited written Alternative Transaction Proposal that the Special Committee determines in good faith (after consultation with the Company’s outside financial and legal advisors) constitutes or may could reasonably be expected to lead to, any Acquisition result in a Superior Proposal, then the Company may take the following actions:
(iiii) furnish information concerning the Company and its Subsidiaries to the Person making such Alternative Transaction Proposal (and its Representatives) pursuant to an Acceptable Confidentiality Agreement; and
(ii) engage in discussions or negotiations (including, as a part thereof, making counterproposals) with any person with such Person (and its Representatives) which respect to any Acquisition such Alternative Transaction Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors of the Company from shall promptly (iand, in any event, within forty-eight (48) in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to hours) provide or make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information available to Parent (to the extent such nonpublic any material non-public information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of concerning the Company or any of the Subsidiaries that is provided to the Person making such Alternative Transaction Proposal or its subsidiaries Representatives which was not previously or any investment bankerconcurrently provided or made available to Parent. As used in this Agreement, attorney or other advisor or representative of the term “Acceptable Confidentiality Agreement” means a confidentiality and standstill agreement that contains provisions that are no less favorable in the aggregate to the Company or any of its subsidiaries than those contained in the Confidentiality Agreement and shall be deemed not prohibit the Company from providing information to be a breach of this Parent which the Company is required to provide pursuant to Section 5.4 by the Company6.6(c).
Appears in 1 contract
No Solicitation. (a) Subject The Company shall, and shall cause the Company Subsidiaries and the Company’s and the Company Subsidiaries’ Representatives to, immediately cease and cause to be terminated any discussions or negotiations with any Person conducted heretofore with respect to a Takeover Proposal, promptly request and use reasonable best 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 provisions of Section 5.2(c), from and after extent any confidentiality agreement with such Person so provides. From the date of this Agreement until the Effective Time or or, if earlier, the termination of this Agreement pursuant to Article VIIin accordance with its terms, except as set forth in this Section 6.8, the Company and its subsidiaries will shall not, nor will they authorize or shall it permit any of their respective officersthe Company Subsidiaries to, directors, affiliates nor shall it authorize or employees or knowingly permit any investment banker, attorney or other advisor or representative retained by any of them Representative to, directly or indirectly, (i) solicit, initiate, or take any action to knowingly facilitate or knowingly encourage or induce (including by way of furnishing non-public information) the makingsubmission of, submission or announcement of any Acquisition Proposal (as hereinafter defined)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 Person any non-public information with respect to, or take any other action to knowingly facilitate any inquiries or the making of any proposal proposal, or that constitutes would reasonably be likely to lead thereto, that constitutes, or may would reasonably be expected to lead to, any Acquisition Takeover Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, notwithstanding anything to the contrary herein, that nothing contained in (A) the Company may refer any third party to this Section 5.4 shall prohibit the ----------------- Board of Directors of the Company from 6.8 and (iB) if in response to an unsolicited, unsolicited bona fide written Acquisition Takeover Proposal from made after the date of this Agreement in circumstances not involving a reputable and responsible third party for a Company Acquisition that the Board breach of Directors of this Agreement, the Company has Board reasonably concluded determines in good faith (based on, among other things, after receiving the advice of a financial advisor of nationally recognized reputation), its Company Financial Advisor) that such Takeover Proposal constitutes or is reasonably expected likely to lead to a Superior Offer, furnishing nonpublic information Proposal and with respect to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes determines in good faith, after consultation consulting with its and receiving the advice of outside counsel, that the failure to take such action would reasonably be expected to result in a breach by the Company Board of its fiduciary obligations duties to the Company’s stockholders under applicable law require it Law, then the Company may at any time prior to the Acceptance Time (but in no event after such time) do sothe following: (A) 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 either entered into between such Person and the Company prior to the date of this Agreement or in customary form that is no less favorable to the Company than the Confidentiality Agreement (except that such confidentiality agreement in customary form 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 (unless a confidentiality agreement with such party was entered into prior to the date of this Agreement and remains in effect) and (3) the Company advises Parent of all such non-public information delivered to such Person concurrently with its delivery to such Person; provided that the Company delivers to Parent all non-public information concurrently with the delivery to such Person if such information has not previously provided to Parent; (B) (x) concurrently conduct discussions or negotiations with furnishing any such nonpublic information to, or written questions to Person regarding such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, Takeover Proposal; and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company permitted pursuant to Parent) and (ii) in response to an unsolicitedcompliance with Section 9.1(d)(ii), bona fide enter into a binding written Acquisition Proposal agreement concerning a transaction that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality AgreementProposal. The Company and shall ensure that its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition ProposalRepresentatives 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 set forth in the preceding two sentences by any officer, director or employee of the Company Subsidiaries or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries their Representatives shall be deemed to be a breach of this Section 5.4 6.8 by the Company. The Company shall provide Parent with a correct and complete copy of any confidentiality agreement entered into after the date of this Agreement 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 Takeover Proposal is received by the Company, and shall, in any such notice to Parent, indicate the identity of the Person making such Takeover Proposal and the terms and conditions of the Takeover Proposal (and shall provide promptly copies of any written materials received from or on behalf of such Person relating to such Takeover Proposal), and thereafter shall promptly keep Parent reasonably informed of all material developments affecting the status and terms of any such Takeover Proposal (and the Company shall provide Parent with copies of any additional written materials with regard to material changes to such Takeover Proposal if it is in written form) and of all material changes in the status of any such discussions or negotiations, and if Parent shall make a counterproposal, consider in good faith the terms of such counterproposal.
(c) Except as expressly permitted by this Section 6.8(c), neither the Company Board nor any committee thereof shall (i) withdraw or modify, or propose publicly to withdraw or modify, the Board Recommendation, or (ii) approve or recommend, or propose publicly to approve or recommend, any Takeover Proposal (it being understood that taking a neutral position or no position with respect to any Takeover Proposal shall be considered an adverse modification) (any action described in clause (i) or (ii) being referred to as a “Company Adverse Recommendation Change”). Notwithstanding the foregoing, the Company Board may, prior to the Acceptance Time, (A) withdraw or modify the Board Recommendation, (B) recommend a Takeover Proposal that constitutes a Superior Proposal, or (C) to the extent permitted pursuant to and in compliance with Section 9.1(d)(ii), enter into a binding written agreement concerning a transaction that constitutes a Superior Proposal, if the Company Board determines in good faith, after consulting with and receiving advice from outside counsel, that such failure to withdraw, modify, recommend or enter into such agreement would reasonably be expected to result in a breach by the Company Board of its fiduciary duties to the Company’s stockholders under applicable Law.
(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 disclosure to the holders of Shares, if in each case the Company Board determines in good faith, after consultation with outside counsel, that failure to take such position or to make such disclosure would reasonably be expected to result in a breach by the Company Board of its fiduciary duties to the holders of Shares under applicable Law; provided, however, that in no event shall the Company, the Company Board or any committee thereof take, or agree or resolve to take, any action that is not expressly permitted by Section 6.8(c), it being agreed that any “stop, look and listen” communication of the type contemplated by Section 14d-9(f) of the Exchange Act, or any substantially similar communication, update or amendment to public disclosure with respect thereto, shall not, by itself, be deemed to be an Company Adverse Recommendation Change) as long as the Company Board expressly reaffirms its recommendation of the Offer to its stockholders.
Appears in 1 contract
Sources: Merger Agreement (Lasercard Corp)
No Solicitation. (a) Subject to the provisions of Section 5.2(c), from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the The Company and its subsidiaries will shall not, nor will they and shall not authorize any officer, director or permit any of their respective officersemployee of, directors, affiliates or employees or any investment banker, attorney or other advisor advisor, agent or representative retained by of, the Company ("Company Representatives") to, and shall instruct the Company Representatives not to, and use its reasonable best efforts to cause the Company Representatives not to, and on becoming aware of will take all reasonable actions to stop any of them such Person from continuing to, directly or indirectly, (i) solicit, initiate, initiate or encourage or induce otherwise intentionally facilitate (including by way of furnishing information) the making, submission or announcement making of any Acquisition Proposal (as hereinafter defineddefined below), (ii) enter into any agreement (other than confidentiality and standstill agreements in accordance with the immediately following proviso) with respect to any Acquisition Proposal, or (iii) participate in any discussions or negotiations regarding, or furnish to any person Person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes constitutes, or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in the case of this Section 5.4 shall prohibit clause (iii), to the ----------------- extent required by the fiduciary obligations of the Board of Directors of the Company, determined in good faith by the members thereof, after consultation with outside legal counsel, the Company from may at any time prior to Company Stockholder Approval (i) the "Applicable Period"), but not thereafter if the Merger is approved thereby, and subject to the Company providing written notice to Parent of its decision to take such action in response and only in response to an unsolicited, bona fide written Acquisition Proposal from received without any initiation, encouragement, discussion or negotiation by the Company or any Company Representative and without contravention by the Company or any of its Representatives of this Section 9.2(a)), (A) furnish information to any Person or "group" (within the meaning of Section 13(d)(3) of the Exchange Act) pursuant to a reputable confidentiality agreement on substantially the same terms as provided in the Confidentiality Agreement and responsible third party for a Company otherwise enter into discussions and negotiations with such Person or group as to any Acquisition Proposal that the Board of Directors of the Company determines in good faith has the good faith intent to proceed with negotiations that are reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected likely to lead to a Superior Offer, furnishing nonpublic information Proposal (as defined in Section 9.2(c)) such Person or group has made and (B) in the event that the Board of Directors is unable to the party making such Acquisition Proposal, and submitting to the party making determine whether such Acquisition Proposal written questionsis a Superior Proposal, the sole purpose of which is to elicit clarifications as to the material terms make inquiry of such Acquisition Proposal so Person or group of such information as to would enable the Board of Directors of the Company to make a determination determine whether to construe or not such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences sentence by the Company or any officerCompany Representative, director whether or employee not such Person is purporting to act on behalf of the Company or any of its subsidiaries or any investment bankerotherwise, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a material breach of this Section 5.4 by the Company.Agreement
Appears in 1 contract
No Solicitation. (a) Subject to the provisions of Section 5.2(c), from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the The Company and its subsidiaries will shall not, nor will they shall it permit or authorize or permit any of their respective officers, directors, affiliates or employees its Subsidiaries or any investment bankerofficer, attorney director, employee, accountant, counsel, financial advisor, agent or other advisor representative of the Company or representative retained by any of them its Subsidiaries (collectively, the “Company Representatives”) to, directly or indirectly, (i) directly or indirectly solicit, initiate, or knowingly encourage or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined)Takeover Proposal, (ii) directly or indirectly participate in any discussions or negotiations regardingwith, or furnish to any person any non-public information with respect or data relating to the Company or its Subsidiaries to, any Third Party in connection with any Takeover Proposal or knowingly take any other action to facilitate any other inquiries or the making of any proposal that constitutes constitutes, or may that would reasonably be expected to lead to, any Acquisition Takeover Proposal, or (iii) engage in discussions with except as permitted by Section 4.3(b) below, enter into any person agreement with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Takeover Proposal or (v) enter into approve or resolve to approve any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition TransactionTakeover Proposal; provided, however, that nothing contained in this Section 5.4 4.3 or any other provision hereof shall prohibit the ----------------- Board of Directors of Company, the Company Board or the Special Committee from (i) in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) taking and disclosing to the Board of Directors of Company’s stockholders a position with respect to a tender or exchange offer by a Third Party pursuant to, or otherwise complying with, Rules 14d-9 and 14e-2 promulgated under the Exchange Act or (B) making any disclosure to the Company’s stockholders if the Company concludes Board or the Special Committee determines in good faith, after consultation with its outside counsel, that the failure to make such disclosure would reasonably be expected to result in a violation of the Company Board’s or Special Committee’s exercise of its fiduciary obligations duties to the holders of shares of Class A Common Stock or if such disclosure is otherwise required under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such partyLaw. Upon execution of this Agreement, the Company gives Parent written notice of the Company's intention shall, and it shall use its reasonable best efforts to furnish nonpublic information, or written questions to such party and (y) cause the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the CompanyRepresentatives to, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Takeover Proposal. Without limiting the foregoing, it is understood agreed that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee Representative of the Company or any of its subsidiaries Company Subsidiary, whether or any investment banker, attorney or other advisor or representative not such person is purporting to act on behalf of the Company or any of its subsidiaries Company Subsidiary or otherwise, shall be deemed to be a breach of this Section 5.4 4.3(a) by the Company.. Notwithstanding the foregoing, prior to the Approval Date, the Company may, in response to an unsolicited Takeover Proposal received by the Company which did not result from a breach of Section 4.3 and which the Special Committee determines in good faith, after consultation with outside counsel and financial advisors is or may reasonably lead to a Superior Proposal, furnish information concerning its business, properties or assets to any Person or group making such Takeover Proposal, and may negotiate and participate in discussions and negotiations with such Person or group concerning a Takeover Proposal if such Person or group has submitted a Superior Proposal that is pending at the time the Company determines to take such action if, and only to the extent that and so long as, (A) the Company and its Subsidiaries are otherwise in compliance with Section 4.3 and, prior to furnishing such information to such Person, the Company receives from such Person an executed confidentiality agreement, and (B) in accordance with the following three sentences, the Company keeps NWC informed, on a current basis, of the status and details of any such discussions or negotiations as provided above. The Company will promptly (and in any event within two Business Days) notify NWC in writing, of the existence of any proposal, discussion, negotiation or inquiry received by the Company with respect to any Takeover Proposal, and the Company’s response thereto (including whether any information has been provided by the Company pursuant to the foregoing sentence), and the Company will promptly communicate to NWC the material terms and conditions of any proposal, discussion, negotiation or inquiry that it may receive and the identity of the Person or group making such proposal or inquiring or engaging in such discussions or negotiations. The Company will keep NWC reasonably informed of the status and details of any such Takeover Proposal and any amendments or revisions thereto. The Company shall promptly provide to NWC any non-public information concerning the Company or any Company Subsidiary that is provided to the person making such Takeover Proposal or its representatives which was not previously provided to NWC. As used in this Agreement, the following terms have the meanings set forth below:
Appears in 1 contract
Sources: Merger Agreement (Nationwide Financial Services Inc/)
No Solicitation. (a) The Company shall, and shall cause its Subsidiaries and its and their respective directors and officers and shall use reasonable best efforts to cause its and their respective other Representatives to (x) immediately cease any and all existing discussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal and (y) as soon as reasonably practicable after the date hereof demand the return or destruction of all confidential, non-public information and materials that have been provided to third parties relating to a possible Acquisition Proposal.
(b) Subject to the provisions other terms of this Section 5.2(c)5.2 and Section 5.3, from at all times during the period commencing with the execution and after the date delivery of this Agreement and continuing until the Effective Time or earlier to occur of the termination of this Agreement pursuant to Article VIIARTICLE IX and the Effective Time, the Company shall not, and shall cause its Subsidiaries and its subsidiaries will not, nor will they authorize or permit any of and their respective officersdirectors and officers not to, directors, affiliates or employees or any investment banker, attorney or and shall use reasonable best efforts to cause its and their respective other advisor or representative retained by any of them Representatives not to, directly or indirectly, (i) solicit, initiate, encourage knowingly encourage, or induce knowingly facilitate any inquiry or the making, submission or announcement making of any proposal or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal (as hereinafter defined)Proposal, (ii) other than with Parent, Merger Sub or their respective Representatives and other than, in response to an unsolicited Acquisition Proposal that did not result from a breach of this Section 5.2, solely to inform any Person of the provisions of this Section 5.2, enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person Person any non-public information with respect toin connection with, any Acquisition Proposal or take any other action to facilitate any inquiries inquiry, proposal or the making of any proposal offer that constitutes or may could reasonably be expected to lead to, any to an Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse execute, enter into, or recommend propose to approve, execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement (other than an Acceptable Confidentiality Agreement entered into in the circumstances referred to in Section 5.2(c)) (A) relating to or that could reasonably be expected to lead to any Acquisition Proposal or (vB) enter into requiring it to abandon, terminate or fail to consummate the Merger and the other transactions contemplated by this Agreement (an “Alternative Transaction Agreement”) or (iv) grant any letter of intent waiver or release under any standstill, confidentiality or other similar document agreement (except that if the Company Board determines in good faith that the failure to grant any waiver or release would be reasonably likely to be inconsistent with the directors’ fiduciary duties under Israeli Law, the Company may waive any contract, agreement or commitment contemplating or otherwise relating such standstill provision in order to any permit a third party to make an Acquisition Transaction; provided, however, that nothing contained Proposal).
(c) Notwithstanding anything to the contrary set forth in this Section 5.4 shall prohibit 5.2 or elsewhere in this Agreement, prior to the ----------------- Board of Directors receipt of the Company from Shareholder Approval, the Company Board (or a committee thereof) may, directly or indirectly through the Company’s Representatives, (i) in response to contact any Person (and its advisors) that has made an unsolicited, bona fide written Acquisition Proposal (which did not result from a reputable breach of this Section 5.2) after the date of this Agreement solely for the purpose of clarifying the terms of such Acquisition Proposal, to the extent necessary and responsible third party for solely to determine whether such proposal constitutes, or could reasonably be expected to lead to, a Company Acquisition that the Board of Directors of Superior Proposal, and (ii) if the Company has reasonably concluded Board shall have determined in good faith (based on, among other things, the advice of a after consultation with its financial advisor and outside legal counsel) that a bona fide, written Acquisition Proposal which did not result from a breach of nationally recognized reputation), is this Section 5.2 either constitutes or could reasonably be expected to lead to a Superior OfferProposal and that the failure to engage in such discussions or negotiations would be reasonably likely to be inconsistent with the directors’ fiduciary duties under Israeli Law, furnishing nonpublic information only with respect to the party making this clause (ii), (A) participate or engage in discussions or negotiations with any such Person regarding such Acquisition Proposal, and submitting (B) furnish to any such Person that has made such an Acquisition Proposal any information relating to the party making Company or its Subsidiaries and/or afford to any such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as Person access to the material terms of such Acquisition Proposal so as business, properties, assets, books, records or other information, or to enable the Board of Directors any personnel, of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offeror its Subsidiaries, to the extent that in each case under clause (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, and this clause (B) (x) concurrently with furnishing any such nonpublic information pursuant to, or written questions and subject to the prior execution of, an Acceptable Confidentiality Agreement. A copy of all such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic non-public information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained other access described in the Confidentiality Agreementforegoing clause (B), and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information not previously provided to Parent (or its Representatives) shall be provided to the extent such nonpublic information has Parent as promptly as reasonably practicable, and in any event not been previously furnished by the Company to Parentmore than forty-eight (48) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faithhours, after consultation with its outside counselsuch information or access, that its fiduciary obligations under applicable law require it to do soas applicable, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished has been provided or made available to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality AgreementPerson (or its Representatives). The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to shall notify Parent in writing promptly (but in no event later than 48 hours) after receipt of any Acquisition Proposal. Without limiting the foregoing, it is understood that Proposal (or any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of request for nonpublic information relating to the Company or any of its subsidiaries or Subsidiaries by any investment banker, attorney or other advisor or representative of Person that informs the Company or any of its subsidiaries Subsidiaries that it is considering making, or has made, an Acquisition Proposal) and shall be deemed indicate the identity of the Person making the Acquisition Proposal or request and the material terms and conditions of any such Acquisition Proposal (including a copy thereof if in writing and any related material documentation or material correspondence, including proposed agreements), and shall keep Parent reasonably informed, on a reasonably current basis, of the status (including any changes to be the material terms and conditions thereof and material developments with respect thereto) of any such Acquisition Proposal, including by providing a breach copy of this Section 5.4 by all material documentation or material correspondence relating thereto, no later than forty-eight (48) hours after the Companyreceipt of the Acquisition Proposal or the occurrence of any such material developments, as applicable, including proposed agreements and any material change in its intentions as previously notified.
Appears in 1 contract
Sources: Merger Agreement (Enzymotec Ltd.)
No Solicitation. (a) Subject to the provisions of Section 5.2(c5.04(b), from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company and its subsidiaries will shall not, nor will they and shall cause its Subsidiaries not to, and shall not authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them its and its Subsidiaries’ Representatives to, directly or indirectly, solicit, initiate or knowingly take any action to facilitate or encourage (it being understood and agreed that ministerial acts that are not otherwise prohibited by this Section 5.04 (such as answering unsolicited phone calls or advising parties of the existence of this Section 5.04) shall not be deemed to “facilitate” or “encourage” for purposes of this Section 5.04(a)) the submission of any Takeover Proposal, or (i) solicit, initiate, encourage conduct or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined), (ii) participate engage in any discussions or negotiations regardingwith, or furnish to any person disclose any non-public information with respect relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, books or take records of the Company or any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead its Subsidiaries to, any Acquisition third party that the Company is aware is seeking to make, or has made, any Takeover Proposal, (iiiii) engage in discussions with (A) amend or grant any person waiver or release under any standstill or similar agreement with respect to any Acquisition Proposal, except as to class of equity securities of the existence Company or any of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal its Subsidiaries or (vB) approve any transaction under, or any third party becoming an “interested stockholder” under, Section 203 of the DGCL, or (iii) enter into any agreement in principle, letter of intent or similar document or any contractintent, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or commitment contemplating or otherwise other Contract relating to any Takeover Proposal (each, a “Company Acquisition Transaction; providedAgreement”). Subject to Section 5.04(b), however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors of neither the Company from (i) Board nor any committee thereof shall fail to make, withdraw, amend, modify or materially qualify, in response a manner adverse to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, Parent or written questions to such partyMerger Sub, the Company gives Parent written notice Board Recommendation, or recommend a Takeover Proposal, fail to recommend against acceptance of any tender offer or exchange offer (other than the Exchange) for the shares of Company Common Stock within ten (10) Business Days after the commencement of such offer, or make any public statement inconsistent with the Company Board Recommendation, or resolve or agree to take any of the Company's intention to furnish nonpublic information, or written questions to such party and foregoing actions (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf any of the Companyforegoing, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (Ca “Company Adverse Recommendation Change”); provided that any disclosure permitted by Section 5.04(b)(iv) contemporaneously with furnishing any such nonpublic information shall not be deemed to such partybe a Company Adverse Recommendation Change. Subject to Section 5.04(b), the Company furnishes such nonpublic information shall, and shall cause its Subsidiaries to Parent (cease immediately and cause to the extent such nonpublic information has be terminated, and shall not been previously furnished by the Company authorize or knowingly permit any of its or their Representatives to Parent) and (ii) in response to an unsolicitedcontinue, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations negotiations, if any, with any parties third party conducted heretofore prior to the date hereof with respect to any Acquisition Takeover Proposal. Without limiting .
(b) Notwithstanding Section 5.04(a), at any time following the foregoingdate of this Agreement and prior to (x) the later of (A) 11:59 p.m., it is understood that any violation New York City time on the 30th day after the date of this Agreement and (B) if, prior to 11:59 p.m., New York City time on the 30th day after the date of this Agreement, the Company has delivered the Superior Proposal Notice, 11:59 p.m., New York City time on the expiration date of the restrictions set forth Superior Proposal Notice Period (the “Stockholder Consent End Date”) in the preceding two sentences by event that the Stockholder Consent is delivered to the Company in accordance with Section 5.05 or (y) the date on which the Requisite Company Vote is obtained at a meeting called to consider the Merger (the “Stockholder Approval Date”) in the event the Stockholder Consent is not delivered to the Company in accordance with Section 5.05 and this Agreement is not terminated in accordance with Section 7.03(c), the Company and the Company Board, as applicable, directly or indirectly through any officerRepresentative, director may, subject to Section 5.04(c), (i) participate in negotiations or employee discussions with any third party that has made a bona fide, unsolicited Takeover Proposal in writing that the Company Board believes in good faith, after consultation with outside legal counsel and financial advisors, constitutes or would reasonably be expected to result in a Superior Proposal, (ii) thereafter furnish to such third party non-public information relating to the Company or any of its Subsidiaries and afford access to the business, properties, assets, books or records of the Company or any of its subsidiaries Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement (a copy of which confidentiality agreement shall be promptly (in all events within twenty-four (24) hours) provided for informational purposes only to Parent), (iii) following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change and/or enter into the Company Acquisition Agreement constituting such Superior Proposal, (iv) make public disclosure in response to an Intervening Event, (v) amend or grant a waiver or release under a standstill or similar agreement with respect to any investment banker, attorney or other advisor or representative class of equity securities of the Company or any of its subsidiaries Subsidiaries (vi) approve any transaction under, or any third party becoming an “interested stockholder” under, Section 203 of the DGCL and (vii) take any action that any court of competent jurisdiction orders the Company to take (which order remains unstayed), but in each case referred to in the foregoing clauses (i) through (vii), only if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable Law. Nothing contained herein shall prevent the Company Board from disclosing to the Company’s stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to a Takeover Proposal or from issuing a “stop, look and listen” disclosure or similar communication of the type contemplated by Rule 14d-9(f) promulgated under the Exchange Act pending disclosure of its position thereunder, if the Company determines, after consultation with outside legal counsel, that failure to disclose such position would be inconsistent with its obligations under applicable Law.
(c) The Company Board shall not take any of the actions referred to in clauses (i) through (iv) of Section 5.04(b) unless the Company shall have delivered to Parent a prior written notice advising Parent that it intends to take such action. The Company shall notify Parent promptly (but in no event later than twenty-four (24) hours) after it becomes aware of the receipt by the Company (or any of its Representatives) after the date hereof of any Takeover Proposal or any inquiry that would reasonably be expected to lead to a Takeover Proposal. In such notice, the Company shall identify the third party making, and details of the material terms and conditions of, any such Takeover Proposal or inquiry. The Company shall keep Parent reasonably informed, on a prompt basis, of the status and material terms of any such Takeover Proposal, or inquiry, including any material amendments or proposed amendments as to price and other material terms thereof. The Company shall provide Parent with prompt notice of any meeting of the Company Board at which the Company Board is reasonably expected to consider any Takeover Proposal. The Company shall promptly provide Parent with any non-public information concerning the Company’s business, present or future performance, financial condition or results of operations, provided to any third party after the date hereof, and, to the extent such information has not been previously provided to Parent, copies of such information.
(d) Except as set forth in this Section 5.04(d), the Company Board shall not make any Company Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement. Notwithstanding the foregoing, at any time prior to (x) 11:59 p.m., New York City time, on the Stockholder Consent End Date (in the event that the Stockholder Consent is delivered to the Company in accordance with Section 5.05), or (y) the Stockholder Approval Date (in the event that the Stockholder Consent is not delivered to the Company in accordance with Section 5.05 of this Agreement and is not terminated in accordance with Section 7.03(c)), the Company Board may make a Company Adverse Recommendation Change in accordance with Section 5.04(b)(iii) or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement, if: (i) the Company promptly notifies Parent (the “Superior Proposal Notice”), in writing, at least five (5) Business Days (the “Superior Proposal Notice Period”) before making a Company Adverse Recommendation Change or entering into (or causing a Subsidiary to enter into) a Company Acquisition Agreement, of its intention to take such action with respect to a Superior Proposal, which notice shall state expressly that the Company has received a Takeover Proposal that the Company Board intends to declare a Superior Proposal and that the Company Board intends to make a Company Adverse Recommendation Change and/or the Company intends to enter into a Company Acquisition Agreement; (ii) the Company attaches to such notice the most current version of the proposed agreement (which version shall be deemed updated on a prompt basis) and the identity of the third party making such Superior Proposal; (iii) the Company shall, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to be a breach cause its and its Subsidiaries’ Representatives to, during the Superior Proposal Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of this Section 5.4 Agreement and the Guarantee so that such Takeover Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments; and (iv) the Company Board determines in good faith, after consulting with outside legal counsel and financial advisors, that such Takeover Proposal continues to constitute a Superior Proposal after taking into account any adjustments made by Parent during the CompanySuperior Proposal Notice Period in the terms and conditions of this Agreement and the Guarantee.
Appears in 1 contract
Sources: Merger Agreement (Edgen Group Inc.)
No Solicitation. (a) Subject to the provisions of Section 5.2(c), from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, Neither the Company and its subsidiaries will notnor any Seller nor any of their respective subsidiaries, nor will they authorize or permit any of their respective officers, directors, affiliates or employees or any investment bankerrepresentatives, attorney or other advisor or representative retained by any of them toshall, directly or indirectly, (i) encourage, solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined), (ii) participate in any or initiate discussions or negotiations regardingwith, or furnish to provide any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, person or group (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document other than Parent and Merger Sub or any contractaffiliate, agreement associate or commitment contemplating designee of Parent or otherwise relating to Merger Sub) concerning any Acquisition proposal (an "ACQUISITION PROPOSAL") that if consummated would constitute an Alternative Transaction; provided, however, that nothing . Nothing contained in this Section 5.4 Agreement shall prohibit prevent the ----------------- Board of Directors of the Company from (i) in response furnishing information to an unsolicited, a third party which has made a bona fide written Acquisition Proposal from a reputable and responsible not solicited in violation of this Agreement, provided that such third party for has executed an agreement with confidentiality provisions substantially similar to those of the Confidentiality Agreement or (ii) subject to compliance with the other terms of this SECTION 7.4, considering and negotiating a Company bona fide Acquisition that Proposal; PROVIDED, HOWEVER, that, as to each of clauses (i) and (ii), the Board of Directors of the Company has reasonably concluded determines in good faith (based onafter due consultation with independent counsel, among other things, the advice of a financial advisor of nationally recognized reputation), which may be Paul Weiss Rifkind Wharton & Garrison) that it is or is reasonably expected li▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇▇▇d ▇▇ ▇▇ so ▇▇ ▇▇▇▇▇ to lead to a Superior Offer, furnishing nonpublic information to the party making such discharge properly its fiduciary duties.
(a) The Company shall notify Parent promptly (but in no event later than 24 hours) after receipt of any Acquisition Proposal, and submitting or any modification of or amendment to any Acquisition Proposal, or any request for nonpublic information relating to the party making such Company or any of its subsidiaries in connection with an Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as or for access to the material terms properties, books or records of such Acquisition Proposal so as to enable the Company or any subsidiary by any person or entity that informs the Board of Directors of the Company or such subsidiary that it is considering making, or has made, an Acquisition Proposal. Such notice to Parent shall be made orally and in writing, and shall indicate the identity of the person making the Acquisition Proposal or intending to make a determination whether an Acquisition Proposal or requesting non-public information or access to construe the books and records of the Company, the terms of any such Acquisition Proposal or modification or amendment to an Acquisition Proposal, and whether the Company is providing or intends to provide the person making the Acquisition Proposal with access to information concerning the Company as provided in SECTION 7.4(A). The Company shall keep Parent fully informed, on a Superior Offercurrent basis, of any material changes in the status and any material changes or modifications in the material terms of any such Acquisition Proposal, indication or request. The Company shall also promptly notify Parent, orally and in writing, if it enters into negotiations concerning any Acquisition Proposal.
(b) For purposes of this Agreement, "ALTERNATIVE TRANSACTION" means any of (i) a transaction pursuant to which any person (or group of persons) other than Parent or its affiliates (a "THIRD PARTY") acquires or would acquire more than 25% of the extent that outstanding shares of any class of equity securities of the Company, whether from the Company or pursuant to a tender offer or exchange offer or otherwise, (Aii) a merger or other business combination involving the Company pursuant to which any Third Party acquires or would acquire more than 25% of the outstanding equity securities of the Company or the entity surviving such merger or business combination, (iii) any transaction pursuant to which any Third Party acquires or would acquire control of assets (including for this purpose the outstanding equity securities of subsidiaries of the Company and securities of the entity surviving any merger or business combination including any of the Company's subsidiaries) of the Company, or any of its subsidiaries having a fair market value (as determined by the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it ) equal to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice more than 25% of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure fair market value of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors assets of the Company concludes in good faithand its subsidiaries, after consultation with its outside counseltaken as a whole, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished immediately prior to such party on behalf of the Companytransaction, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease or (iv) any and all existing activitiesother consolidation, discussions business combination, recapitalization or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of similar transaction involving the Company or any of its subsidiaries or any investment bankerCompany Significant Subsidiary, attorney or other advisor or representative of than the Company or any of its subsidiaries shall be deemed to be a breach of transactions contemplated by this Section 5.4 by the CompanyAgreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Paragon Trade Brands Inc)
No Solicitation. (a) Subject to the provisions of Section 5.2(c), from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the The Company and its subsidiaries will shall not, nor will they authorize or --------------- shall it permit any of their respective officersits Subsidiaries to, directorsnor shall it authorize (and shall use its best efforts not to permit) any officer, affiliates director or employees employee of, or any investment banker, attorney or other advisor or representative retained by of, the Company or any of them its Subsidiaries to, (i) solicit or initiate, or encourage, directly or indirectly, (i) solicitany inquiries or the submission of, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined)Takeover Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any person Person any non-public information or data with respect toto or access to the properties of, or take any other action to knowingly facilitate any inquiries or the making of any proposal that constitutes constitutes, or may reasonably be expected to lead to, any Acquisition Proposal, Takeover Proposal or (iii) engage in discussions with enter into any person agreement with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Takeover Proposal or (v) enter into approve or resolve to approve any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition TransactionTakeover Proposal; provided, however, that nothing contained in -------- ---- this Section 5.4 5.5 or any other provision hereof shall prohibit the ----------------- Company or the Company's Board of Directors of the Company from (i) in response taking and disclosing to an unsolicited, bona fide written Acquisition Proposal from the Company's stockholders a reputable and responsible position with respect to a tender or exchange offer by a third party for a Company Acquisition that pursuant to Rules 14d-9 and 14e-2 promulgated under the Board of Directors of the Company has reasonably concluded Exchange Act, or (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information ii) making such disclosure to the party making such Acquisition ProposalCompany's stockholders as, and submitting to in the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice faith judgment of the Company's intention to furnish nonpublic informationBoard of Directors, after receiving written advice from outside counsel, is required under applicable Law, provided that the Company may not, except as permitted by Section 5.5(b), withdraw or modify, or written questions propose to such party and (y) withdraw or modify, its position with respect to the Company receives from such party an executed confidentiality Offer or the Merger or approve or recommend, or propose to approve or recommend any Takeover Proposal, or enter into any agreement containing customary limitations on the use and disclosure with respect to any Takeover Proposal. Upon execution of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality this Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposalof the foregoing. Without limiting Notwithstanding the foregoing, it is understood that any violation prior to the time of acceptance of Shares for payment pursuant to the restrictions set forth in the preceding two sentences by any officerOffer, director or employee of the Company may furnish information concerning its business, properties or assets to any of its subsidiaries Person or any investment banker, attorney group and may negotiate and participate in discussions and negotiations with such Person or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be group concerning a breach of this Section 5.4 by the Company.Takeover Proposal if:
Appears in 1 contract
No Solicitation. (a) Subject to the provisions of Company agrees that, except as expressly permitted by this Section 5.2(c)6.10, from and after the date of this Agreement hereof until the Effective Time or or, if earlier, the termination of this Agreement pursuant in accordance with Article VIII, neither it nor the Bank nor any of the officers and directors of it or the Bank shall, and that it shall use its reasonable best efforts to Article VIIinstruct and cause its and the Bank’s employees, investment bankers, attorneys, accountants and other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives, collectively, the Company and its subsidiaries will not, nor will they authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them “Representatives”) not to, directly or indirectly, : (i) take any action to solicit, initiate, encourage or induce knowingly facilitate (including by way of furnishing nonpublic information or assistance) any inquiries with respect to, or the makingmaking of, submission or announcement of any Acquisition Proposal (as hereinafter defined)Proposal, (ii) participate in any discussions or negotiations regardingregarding any Acquisition Proposal or furnish, or furnish otherwise afford access, to any person Person (other than Purchaser and Purchaser Bank) any non-public information or data with respect to, to Company or take any other action Bank or otherwise relating to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any an Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal (other than the Merger), or (viv) enter into any letter agreement in principle, arrangement, understanding, contract or agreement relating to an Acquisition Proposal. Upon execution of intent this Agreement, Company shall, and shall cause the Bank and each of their respective Representatives to, immediately cease any discussions, negotiations or similar document communications with any party or any contract, agreement or commitment contemplating or otherwise relating parties with respect to any Acquisition TransactionProposal; provided, however, that nothing contained in this Section 5.4 6.10 shall prohibit preclude Company or Bank or each of their Representatives from contacting any such party or parties solely for the ----------------- purpose of complying with the provisions of the first clause of this sentence or to enforce the provisions of any confidentiality agreement entered into with any person with respect to a potential Acquisition Proposal.
(b) Notwithstanding Section 6.10(a), Company may take any of the actions described in clause (ii) of Section 6.10 if, but only if, (i) Company has received a bona fide unsolicited written Acquisition Proposal, prior to the Company Shareholder Approval, that did not result from a breach of this Section 6.10; (ii) Company’s Board of Directors determines (in accordance with this Agreement) that such Acquisition Proposal constitutes a Superior Proposal; (iii) Company has provided Purchaser with at least five (5) Business Day’s prior notice of such determination; (iv) prior to furnishing or affording access to any information or data with respect to Company or the Company from (i) in response Bank or otherwise relating to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company Purchaser receives from such party an executed Person a confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished with terms no less favorable to such party on behalf of the Company, the terms of which are at least as restrictive as the terms Company than those contained in the Confidentiality Agreement, ; and (Cv) contemporaneously with furnishing the failure of Company’s Board of Directors to furnish such information or access or enter into discussions or negotiations would violate its fiduciary duties to the Shareholder. Company shall promptly provide to Purchaser any non-public information regarding Company or the Bank provided to any other Person that was not previously provided to Purchaser, such nonpublic additional information to be provided no later than the date of provision of such information to such other party.
(c) Company shall promptly (and in any event within twenty-four (24) hours) notify Purchaser in writing if any proposals or offers (or modified offers or proposals) are received by, any information is requested from, or any negotiations or discussions are sought to be initiated or continued with, Company or any Company Representatives, in each case in connection with any Acquisition Proposal, and such notice shall indicate the Company furnishes name of the Person initiating such nonpublic discussions or negotiations or making such proposal, offer or information to Parent request.
(to the extent such nonpublic information has not been previously furnished by the Company to Parentd) and As used in this Agreement, “Acquisition Proposal” means any bona fide proposal or offer for, whether in one transaction or a series of related transactions, a (i) merger, consolidation, share exchange, business combination or similar transaction involving Company, (ii) in response to an unsolicitedsale or other disposition, bona fide written Acquisition Proposal that constitutes a Superior Offerdirectly or indirectly, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board by merger, consolidation, share exchange, business combination or any similar transaction, of Directors any assets of Company representing 10% or more of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do soconsolidated assets of Company, (Biii) (x) concurrently with entering into negotiations with such partyrecapitalization, the Company gives Parent written notice restructuring, liquidation, dissolution or other similar type of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore transaction with respect to Company, or (iv) transaction which is similar in form, substance or purpose to any of the foregoing transactions; provided, however, that the term “Acquisition Proposal. Without limiting the foregoing, it is understood that ” shall not include any violation of the restrictions set forth in the preceding two sentences transactions contemplated by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the CompanyAgreement.
Appears in 1 contract
No Solicitation. (a) Subject to During the provisions of Pre-Closing Period, except as expressly permitted by Section 5.2(c5.6(c), from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company and its subsidiaries will shall not, nor will they authorize or permit any of and shall cause its Subsidiaries and their respective directors, officers, directorsemployees, affiliates or employees or any investment bankerbankers, attorney or financial advisors, attorneys, accountants, agents and other advisor or representative retained by any of them representatives (collectively, “Representatives”) not to, directly or indirectly, (i) initiate, solicit, initiate, or knowingly encourage or induce knowingly facilitate (including through the making, furnishing of any nonpublic information) the submission or announcement of any Acquisition Takeover Proposal or any inquiry, indication of interest, offer or proposal that would reasonably be expected to lead to a Takeover Proposal (as hereinafter defineda “Takeover Inquiry”), ; (ii) participate participate, engage in or continue any discussions or negotiations regarding, or furnish to any person Person any non-public information with respect toin connection with, or take any other action to facilitate any inquiries for the purpose of knowingly encouraging or the making of any proposal that constitutes knowingly facilitating a Takeover Proposal or may reasonably be expected to lead to, any Acquisition Proposal, Takeover Inquiry; (iii) engage in discussions with waive, terminate, modify or fail to enforce any person “standstill” or confidentiality obligation of any Person (other than any party hereto) with respect to the Company or any Acquisition Proposal, except as to the existence of these provisions, its Subsidiaries; (iv) approve, endorse or recommend any Acquisition Takeover Proposal or Takeover Inquiry (or resolve or publicly propose to do any of the foregoing); or (v) enter into any agreement, agreement in principle, letter of intent or similar document with respect to a Takeover Proposal or Takeover Inquiry (other than an Acceptable Confidentiality Agreement entered into in accordance with this Section 5.6) or accept any contractTakeover Proposal or Takeover Inquiry (or resolve or publicly propose to do any of the foregoing).
(b) Notwithstanding the foregoing, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in Section 5.6(a) or elsewhere in this Section 5.4 Agreement shall prohibit the ----------------- Board of Directors of Company or the Company Board from (i) in response stating and disclosing to an unsolicited, bona fide written Acquisition Proposal from the Company’s stockholders a reputable and responsible position with respect to a tender or exchange offer by a third party for pursuant to Rules 14d-9 and 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, including a Company Acquisition that the Board of Directors “stop, look and listen” statement pursuant to Rule 14d-9(f) of the Company Exchange Act, or (ii) making any other legally required disclosure to the Company’s stockholders of or relating to the fact that a Takeover Proposal or Takeover Inquiry has reasonably concluded (based on, among other thingsbeen made, the advice identity of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Takeover Proposal written questions, the sole purpose or Takeover Inquiry or any legally required disclosure of which is to elicit clarifications as to the material terms of such Acquisition Takeover Proposal or Takeover Inquiry; provided, that any such disclosure that has the effect of withdrawing, modifying or qualifying in any manner adverse to Parent, the Company Board Recommendation, shall be deemed to be a Company Adverse Change Recommendation unless the Company Board expressly publicly reaffirms the Company Board Recommendation in such communication without any qualification; provided, further, that this Section 5.6(b) shall not be deemed to permit the Company Board to make a Company Adverse Change Recommendation except to the extent permitted by Section 5.6(f)(ii).
(c) If at any time on or after the date of this Agreement and prior to the Acceptance Time, the Company or any of its Representatives receives from a third party a bona fide written unsolicited Takeover Proposal, the Company and its Representatives may (x) contact such third party solely to clarify the terms and conditions of such Takeover Proposal so as to enable the Board of Directors of determine if such Takeover Proposal constitutes, or would reasonably be expected to constitute, a Superior Proposal, (y) enter into and participate in discussions or negotiations with such third party and its Representatives regarding such Takeover Proposal and (z) furnish access and nonpublic information to such third party in response to a request therefor, in each case, if and only if: (i) prior to taking any action contemplated in clauses (y) or (z) above, the Company shall have provided at least 24 hours prior written notice to make a determination whether Parent of its intent to construe take any such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of action and the Company concludes Board shall have determined in good faith, after consultation with its outside counsellegal counsel and the Company Financial Advisor, that its fiduciary obligations under applicable law require it such Takeover Proposal constitutes, or would reasonably be expected to do so, (B) (x) concurrently with furnishing any such nonpublic information lead to, or written questions a Superior Proposal and that the failure to take such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and action contemplated in clauses (y) or (z) above would be inconsistent with the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished Board’s fiduciary duties to such party on behalf of the Company, ’s stockholders under applicable Law; (ii) there shall have been no breach or violation of the terms of which are at least as restrictive as the terms contained Section 5.6(a) in the Confidentiality Agreement, any material respect in connection with such third party making such Takeover Proposal; and (Ciii) contemporaneously with promptly (and in any event within 24 hours) after furnishing or making available any such nonpublic information to such third party, the Company furnishes or makes available such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished or made available to Parent). Any nonpublic information furnished or made available to such third party shall be subject to an executed confidentiality agreement in a customary form, which shall be executed prior to the time such information is furnished or made available, that is no less restrictive in the aggregate to the other party than the Confidentiality Agreement is on Parent at such time (“Acceptable Confidentiality Agreement”); provided, that the Company shall not enter into any confidentiality agreement with any person on or after the date of this Agreement that prohibits the Company from providing any information to Parent in accordance with this Section 5.6 or otherwise prohibits the Company from complying with its obligations under this Agreement; provided, further, that the Company shall not provide information to any Person pursuant to any confidentiality agreement entered into prior to the date of this Agreement unless such Person agrees prior to receipt of such information to waive any provision that would prohibit the Company from providing any information to Parent in accordance with this Section 5.6 or otherwise prohibit the Company from complying with its obligations under this Agreement.
(d) During the Pre-Closing Period, the Company shall (1) promptly (and in any event within 24 hours) advise Parent in writing of the receipt of any Takeover Proposal or Takeover Inquiry that is made or submitted by any Person during the Pre-Closing Period, (2) provide to Parent a summary of the material terms and conditions thereof (including the identity of the Person making such Takeover Proposal or Takeover Inquiry and, if applicable, complete copies of any written request, inquiry, proposal, indication of interest or offer (or written summaries thereof if the same were made in oral form), including proposed agreements and any other written communications), (3) keep Parent reasonably informed of any material developments, discussions or negotiations regarding such Takeover Proposal or Takeover Inquiry (including any modifications to the financial or other material terms and conditions of such Takeover Proposal or Takeover Inquiry) on a prompt basis (and in any event within 24 hours), and (4) upon the request of Parent, reasonably inform Parent of the status of such Takeover Proposal or Takeover Inquiry.
(e) The Company shall, and shall cause its Subsidiaries and Representatives, to, immediately cease and cause to be terminated any solicitation, discussions or negotiations with any Person (other than Parent) conducted on or prior to the date of this Agreement that relate to any Takeover Proposal or Takeover Inquiry or any request for nonpublic information relating to the Company with respect to any Takeover Proposal or Takeover Inquiry. The Company shall also immediately terminate all physical and electronic data room access previously granted to any such Person or any of its Representatives. Within 24 hours after executing this Agreement, the Company shall deliver a written notice to each such Person providing only that the Company is ending all discussions and negotiations with such Person with respect to any Takeover Proposal or Takeover Inquiry, which notice shall also request the return or destruction of all confidential information provided by or on behalf of the Company to any such Person or any of its Representatives promptly after the date of this Agreement.
(f) Company Adverse Change Recommendation; Takeover Proposal.
(i) Except as permitted by Section 5.6(f)(ii), neither the Company Board nor any committee thereof shall: (A)(1) fail to make when required by this Agreement, withhold, withdraw (or qualify or modify in a manner adverse to Parent), resolve to fail to make when required by this Agreement, withhold or withdraw (or qualify or modify in a manner adverse to Parent), or publicly propose to fail to make when required by this Agreement, withhold or withdraw (or qualify or modify in a manner adverse to Parent), the Company Board Recommendation; (2) approve, recommend or declare advisable, resolve to approve, recommend or declare advisable, or publicly propose to approve, recommend or declare advisable, any Takeover Proposal; (3) fail to publicly affirm without qualification upon Parent’s request as promptly as practicable (but in any event within five Business Days after Parent’s request) after a public announcement of a Takeover Proposal (or if the Outside Date is less than five Business Days from receipt of such request from Parent as promptly as practicable following such request) the Company Board Recommendation (provided that the Company Board shall only be required to make such affirmation two times for any specific Takeover Proposal (but if such Takeover Proposal is amended, modified or supplemented, any affirmation by the Company Board prior to such amendment, modification or supplement shall be disregarded for purposes of this proviso)); (4) fail to include the Company Board Recommendation in the Schedule 14D-9; (5) if any Takeover Proposal that is structured as a tender offer or exchange offer for outstanding Company Common Stock is commenced pursuant to Rule 14d-2 of the Exchange Act, fail to recommend unequivocally against acceptance of such offer by the Company’s stockholders prior to the earlier of (x) the then scheduled Expiration Date, (y) the Outside Date and (z) 11 business days (which for this purpose shall be used as such term is used in Rule 14d-9 of the Exchange Act) after commencement of such tender offer or exchange offer pursuant to Rule 14d-2 of the Exchange Act; or (6) approve or recommend or publicly declare advisable or publicly propose to enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, collaboration agreement or other agreement with respect to, any Takeover Proposal (other than an Acceptable Confidentiality Agreement in accordance with Section 5.6(c)) (an “Alternative Acquisition Agreement,” and any action described in clause (A) of this Section 5.6(f)(i) being referred to as a “Company Adverse Change Recommendation”); or (B) cause or allow the Company to execute or enter into any Alternative Acquisition Agreement.
(ii) Notwithstanding anything to the contrary contained in Section 5.6(f)(i), at any time prior to, but not after, the Acceptance Time, if (I) the Company has received an unsolicited Takeover Proposal (which Takeover Proposal did not result from or arise out of a breach of this Section 5.6 in any material respect) from any Person that has not been withdrawn and, after consultation with outside legal counsel and the Company Financial Advisor, the Company Board has determined in good faith that such Takeover Proposal constitutes a Superior Proposal (after giving effect to all of the revisions to the terms of this Agreement which may be offered by Parent, including pursuant to clause (C) below) or (II) after consultation with outside legal counsel and the Company Financial Advisor, the Company Board has determined there has been an Intervening Event, then (x) the Company Board prior to the Acceptance Time may make a Company Adverse Change Recommendation or (y) in the case of a Company Adverse Change Recommendation relating to a Superior Proposal, and after complying with the provisions of this Section 5.6(f)(ii), the Company may terminate this Agreement in accordance with Section 7.1(d) in order to enter into a Specified Agreement with respect to such Superior Proposal, in the case of each of (I) and (ii) in response to an unsolicitedII), bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that if and only if: (A) the Company Board of Directors of the Company concludes has determined in good faith, after consultation with outside legal counsel and the Company Financial Advisor, that the failure to do so would be inconsistent with the Company Board’s fiduciary duties to the Company’s stockholders under applicable Law; (B) the Company shall have given Parent prior written notice of its intention to make a Company Adverse Change Recommendation or terminate this Agreement pursuant to Section 7.1(d) at least four Business Days prior to making any such Company Adverse Change Recommendation or termination (a “Determination Notice”), which notice shall have included (1) with respect to an Intervening Event, a reasonably detailed description of the Intervening Event or (2) with respect to such Superior Proposal, a copy of the Specified Agreement, the identity of the Person making such Superior Proposal, and a summary of the material terms and conditions of such Superior Proposal; (C)(1) the Company shall have given Parent four Business Days after Parent’s receipt of the Determination Notice to propose revisions to the terms of this Agreement or make other proposals so that either (aa) such Takeover Proposal would cease to constitute a Superior Proposal or (bb) in the case of a Company Adverse Change Recommendation involving an Intervening Event, such that the failure to effect a Company Adverse Change Recommendation would not be inconsistent with the Company Board’s fiduciary duties to the Company’s stockholders under applicable Law, and shall have made its Representatives available to, and negotiated in good faith with, Parent with respect to such proposed revisions or other proposals, if any, during such period, (2) at the end of such period, after considering in good faith the results of such negotiations and giving effect to such proposed revisions or other proposals made by Parent, if any, and after consultation with outside legal counsel and the Company Financial Advisor, the Company Board shall have determined in good faith that such Takeover Proposal is still a Superior Proposal and, after consultation with outside legal counsel, that its the failure to make such Company Adverse Change Recommendation or terminate this Agreement pursuant to Section 7.1(d) would be inconsistent with the Company Board’s fiduciary obligations duties to the Company’s stockholders under applicable law Law or, in the case of a Company Adverse Change Recommendation involving an Intervening Event, that the failure to effect a Company Adverse Change Recommendation would be inconsistent with the Company Board’s fiduciary duties to the Company’s stockholders under applicable Law. For the avoidance of doubt, the provisions of this Section 5.6(f)(ii) shall also apply to every amendment to any Takeover Proposal and shall require it a new Determination Notice be delivered to do so, Parent in accordance with clause (B) above, except that the “matching” period described in clauses (xB) concurrently with entering into negotiations with such party, and (C) above shall be two Business Days rather than the Company gives Parent written notice initial four Business Day period.
(g) The violation of any of the provisions of this Section 5.6 by any of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company ’s Subsidiaries or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries such Subsidiaries’ respective Representatives shall be deemed to be constitute a breach of this Section 5.4 Agreement by the Company.
Appears in 1 contract
Sources: Merger Agreement
No Solicitation. (a) Subject to From the date hereof until the termination hereof and except as expressly permitted by the following provisions of this Section 5.2(c), from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII5.7, the Company and its subsidiaries will not, nor will they it authorize or permit any officer, director or employee of their respective officers, directors, affiliates or employees or any investment banker, attorney attorney, accountant or other advisor or representative retained by any of them of, the Company to, directly or indirectly, (i) solicit, initiate, initiate or encourage or induce facilitate any inquiries or the making, submission making of any proposal or announcement of offer with respect to any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate (including granting any waiver or release under any standstill or similar agreement with respect to the securities of the Company), any Acquisition Proposal or any inquiries or the making of any proposal that constitutes constitutes, or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any agree to, approve or recommend an Acquisition Proposal, except as to the existence of these provisions, or (iv) approvetake any other action inconsistent with the obligations and commitments assumed by the Company pursuant to this Section 5.7, endorse PROVIDED, HOWEVER, that subject to compliance by the Company with the provisions of Section 5.7(b), the Company's Board of Directors, prior to receipt of the Requisite Company Vote, may furnish information to, or recommend any Acquisition Proposal or (v) enter into discussions with, any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, person that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors of the Company from (i) in response to makes an unsolicited, unsolicited bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposalif, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, only to the extent that (A) the Company's Board of Directors, after consultation with independent 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 shareholders under applicable Law, (B) financing for such Acquisition Proposal, to the extent required, is then committed or which, in the reasonable judgment of the Company concludes Company's Board of Directors, is reasonably capable of being obtained by such third party, (C) the Company's Board of Directors determines in good faith that such Acquisition Proposal, if accepted, is reasonably likely to be consummated taking into account all legal, financial, regulatory and other aspects of the proposal and the person making the proposal, and believes in good faith, after consultation with its outside counseland based upon the advice of an independent nationally recognized financial advisor that such Acquisition Proposal would, that its fiduciary obligations under applicable law require it if consummated, result in a transaction more favorable to do sothe Company's shareholders from a financial point of view than the Merger (any such more favorable Acquisition Proposal being referred to herein as a "SUPERIOR PROPOSAL"), and (BD) prior to taking such action, the Company (x) concurrently with furnishing any provides reasonable notice to Parent to the effect that it is taking such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party action and (y) the Company receives from such party person an executed confidentiality agreement containing in reasonably customary limitations on the use and disclosure of all nonpublic written and oral information furnished form.
(b) Prior to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing providing any such nonpublic information to or entering into discussions with any person in connection with an Acquisition Proposal by such partyperson as set forth in Section 5.7(a), the Company furnishes such nonpublic information to shall notify Parent orally and in writing of (to i) any Acquisition Proposal (including, without limitation, the extent such nonpublic information has not been previously furnished by material terms and conditions thereof and the Company to Parentidentity of the person making it) and or (ii) any inquiries indicating that any person is considering making or wishes to make, or with respect to, or which could reasonably be expected to lead to, an Acquisition Proposal, as promptly as practicable (but in response to an unsolicitedno case later than 24 hours) after its receipt thereof, bona fide and shall provide Parent with a copy of any written Acquisition Proposal that constitutes or amendments or supplements thereto, and shall thereafter inform Parent on a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board prompt basis of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into the status of any discussions or negotiations with any such third party, and any material changes to the Company gives terms and conditions of such Acquisition Proposal, and shall promptly give Parent written notice a copy of the Company's intention any information delivered to enter into negotiations with such party person which has not previously been reviewed by Parent and (y) any request by any person for nonpublic information relating to the Company's properties, books or records.
(c) Immediately after the execution and delivery of this Agreement, the Company receives from such party an executed confidentiality agreement containing customary limitations on the use will, and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and will cause its subsidiaries will immediately and affiliates, and their respective officers, directors, employees, investment bankers, attorneys, accountants and other agents to, cease and terminate any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. Without limiting the foregoingProposal and shall notify each party that it, it is understood that any violation of the restrictions set forth in the preceding two sentences by or any officer, director or employee of the Company or any of its subsidiaries or any director, investment bankeradvisor, financial advisor, attorney or other advisor representative retained by it, has had discussions with during the 90 days prior to the date of this Agreement that the Company's Board of Directors no longer seeks the making of any Acquisition Proposal. The Company agrees that it will take the necessary steps to promptly inform the individuals or representative entities referred to in the first sentence of Section 5.7(a) of the obligations undertaken in this Section 5.7.
(d) The Company's Board of Directors will not withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent, its approval or recommendation of this Agreement or the Merger except in connection with a Superior Proposal and then only after the termination of this Agreement pursuant to Section 7.1(d).
(e) Nothing contained in this Section 5.7 shall prohibit the Company from taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any disclosure to the Company's shareholders which, in the good faith reasonable judgment of the Company's Board of Directors, after consultation with independent legal counsel, is required under applicable Law; PROVIDED, that except as otherwise permitted in this Section 5.7, the Company does not withdraw or modify, or propose to withdraw or modify, its position with respect to the Merger or approve or recommend, or propose to approve or recommend, an Acquisition Proposal.
(f) For purposes of this Agreement, "ACQUISITION PROPOSAL" means an inquiry, offer or proposal regarding any of the following (other than the transactions contemplated by this Agreement) involving the Company: (i) any merger, consolidation, share exchange, recapitalization, business combination or other similar transaction; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of all or substantially all the assets of the Company in a single transaction or series of related transactions; (iii) any tender offer or exchange offer for ten percent (10%) or more of the outstanding shares of Company Common Stock or the filing of a registration statement under the Securities Act in connection therewith; or (iv) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Companyforegoing.
Appears in 1 contract
No Solicitation. (a) Subject Notwithstanding any other provision of this Agreement to the provisions contrary, during the period beginning on the date of Section 5.2(c), from this Agreement and continuing until 11:59 p.m. on the date that is 45 days after the date of this Agreement (the "No-Shop Period Start Date"), the Company, its Subsidiaries and its and its Subsidiaries' Representatives shall have the right (acting through the Special Committee) to: (i) initiate, solicit or encourage (including by way of providing information, but only pursuant to an Acceptable Confidentiality Agreement) or facilitate any inquiries, proposals or offers with respect to, or the making, or the completion of, a Takeover Proposal; provided that the Company shall concurrently disclose to Parent the same non-public information concerning the Company or its Subsidiaries that is provided to any Person given such access if such non-public information has not previously been disclosed to Parent; and (ii) participate or engage in discussions or negotiations with respect to a Takeover Proposal, or otherwise cooperate with or assist any Person in connection with a Takeover Proposal.
(b) (i) From the No Shop Period Start Date until the Effective Time or termination of this Agreement pursuant to Article VIITime, except as specifically permitted in Section 6.4(e), the Company agrees that neither it nor any of its Subsidiaries nor any of the officers or directors of it or its Subsidiaries shall, and that it shall cause its and its subsidiaries will not, nor will they authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them Subsidiaries' Representatives not to, directly or indirectly, :
(iA) solicit, initiate, solicit or encourage (including by way of providing information) or induce facilitate any inquiries, proposals or offers with respect to, or the making, submission or announcement of any Acquisition Proposal the completion of, a Takeover Proposal;
(as hereinafter defined), (iiB) participate or engage in any discussions or negotiations regardingwith, or furnish to any person or disclose any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors of the Company from (i) in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries Subsidiaries to, or otherwise cooperate with or assist any investment bankerPerson in connection with a Takeover Proposal; or
(C) resolve, attorney propose or other advisor or representative agree to do any of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Companyforegoing.
Appears in 1 contract
No Solicitation. (a) Subject to To allow time for negotiation of the provisions of Section 5.2(c)Refinancing, from and after the date hereof until the earlier of (i) the Closing and (ii) expiration of the provisions of this Agreement until Section 6.4(a) pursuant to Section 6.4(b) hereof, and except as expressly permitted by the Effective Time or termination following provisions of this Agreement pursuant to Article VIISection 6.4(a), the Company and its subsidiaries will shall not, nor will they and shall not authorize or permit any of their respective Company's officers, directors, affiliates or employees or any employees, agents, investment bankerbankers, attorney attorneys, financial advisors or other advisor or representative retained by any of them representatives (collectively, "Company Representatives") to, directly or indirectly, (i) solicit, initiate, initiate or encourage (including by way of furnishing information or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter definedassistance), (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, an Acquisition Proposal from any Third Party or engage in any discussions or negotiations relating thereto or in furtherance thereof or furnish to any Person any information with respect to, or accept or enter into any agreement that would result in, or waive any agreement that would prevent or discourage, any Acquisition Proposal; PROVIDED, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, howeverHOWEVER, that nothing contained in this Section 5.4 paragraph shall prohibit the ----------------- Board of Directors of the Company from (i) in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded from (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected 1) obtaining such information with respect to lead to a Superior Offer, furnishing nonpublic information to the party making such any unsolicited Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company determines, after consultation with counsel, is necessary to make a determination determine whether to construe such Acquisition Proposal as would constitute a Superior OfferProposal, or (2) furnishing information to, or entering into discussions or negotiations with, any person that makes an unsolicited bona fide, fully financed, written Acquisition Proposal which relates to the acquisition by any Third Party of all of the equity of Company, whether by merger, tender offer or otherwise, if and only to the extent that (A) the Board of Directors of the Company concludes in good faithDirectors, after consultation with its outside independent legal counsel, determines in good faith that such action is necessary for the Board of Directors to comply with its fiduciary obligations duties to Company's stockholders under applicable law require it to do solaw, (B) (x) concurrently the Board of Directors determines in good faith after consultation with furnishing any a nationally recognized expert with experience in appraising the terms and conditions of such nonpublic information tounsolicited Acquisition Proposal, or written questions that such unsolicited Acquisition Proposal after taking into account the strategic benefits to such partybe derived from the transaction with Purchaser and the long-term prospects of Company, the Company gives Parent written notice of would, if consummated, result in a transaction more favorable to the Company's intention stockholders from a financial point of view than the transactions contemplated hereby (any such more favorable bona fide unsolicited Acquisition Proposal being referred to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreementa "Superior Proposal"), and (C) contemporaneously prior to taking such action, Company (i) notifies Purchaser of any Acquisition Proposal (including, without limitation, the material terms and conditions thereof and the identity of the person making the Acquisition Proposal) as promptly as practicable (but in no case later than 24 hours) after receipt thereof, (ii) provides Purchaser with furnishing a copy of any written Acquisition Proposal, (iii) thereafter informs Purchaser on a prompt basis of the status of any discussion or negotiations with such nonpublic a Third Party and any material changes to the terms and conditions of such Acquisition Proposal, (iv) promptly gives Purchaser a copy of any information delivered to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information Third Party which has not been previously furnished reviewed by the Company to Parent) Purchaser and (iiv) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party Third Party an executed confidentiality agreement in reasonably customary form and in any event containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive stringent as the terms those contained in the Confidentiality Non-Disclosure Agreement. .
(b) The provisions of Section 6.4(a) shall expire (without affecting the provisions of Section 8.4) if either (i) a term sheet for the Refinancing (which shall have been agreed to by Company and its subsidiaries will immediately cease any and all existing activitiesPurchaser) (the "Term Sheet") is not presented to the agent banks for the Company's Bank Debt (the "Agent Banks") by December 21, discussions 2000 assuming reasonable cooperation from Company, or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting (ii) if the foregoing, it is understood that any violation Agent Banks do not recommend approval of the restrictions set forth in Term Sheet (as such Term Sheet may be amended from time to time with the preceding two sentences approval of Company and Purchaser) to the Lenders by any officerFebruary 27, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Company2001.
Appears in 1 contract
No Solicitation. (a) Subject to The Acquired Corporations and the provisions of Section 5.2(c), from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company and its subsidiaries will not, nor will they authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them to, Acquired Corporations' Representatives shall not directly or indirectly, indirectly (i) solicit, initiate, encourage or induce the making, submission or announcement of any Company Acquisition Proposal (as hereinafter defined)Proposal, (ii) participate in furnish any discussions or negotiations regarding, or furnish nonpublic information regarding any of the Acquired Corporations to any person any non-public information Person in connection with respect to, or take any other action in response to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any a Company Acquisition Proposal, (iii) negotiate or engage in discussions with any person Person with respect to any Company Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Company Acquisition Proposal Transaction or (v) enter into any letter of intent or similar document or any contract, agreement or commitment Contract contemplating or otherwise relating to any Company Acquisition TransactionProposal; provided, however, that nothing contained notwithstanding any other provision hereof, the Company may (i) at any time prior to the time the Company's stockholders shall have voted to approve this Agreement, engage in this Section 5.4 shall prohibit discussions or negotiations with a third party who (without any solicitation, initiation, encouragement, discussion or negotiations, directly or indirectly, by or with the ----------------- Company or its Representatives after the date hereof) seeks to initiate such discussions or negotiations and may furnish such third party information concerning the Company and its business, properties and assets if, and only to the extent that, (A)(x) the third party has first made a Company Acquisition Proposal that is financially superior to the terms hereof and has demonstrated that financing for the Company Acquisition Proposal is reasonably likely to be obtained (as determined in good faith by the Company's Board of Directors of after consultation with its financial advisors) and (y) the Company from (i) in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Company's Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes shall conclude in good faith, after consultation with its outside counselconsidering applicable provisions of state law, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, on the basis of oral or written questions advice of outside counsel that failing to take such party, the Company gives Parent written notice action would result in substantial likelihood of liability for breach of the Company's intention Board of Directors' fiduciary duties under applicable law and (B) prior to furnishing such information to or entering into discussions or negotiations with such person or entity, the Company (x) provides prompt notice to Parent to the effect that it is planning to furnish nonpublic information, information to or written questions to enter into discussions or negotiations with such party person or entity and (y) the Company receives from such party Person an executed confidentiality agreement containing in reasonably customary limitations form on terms not in the use and disclosure of all nonpublic written and oral information furnished aggregate materially more favorable to such party on behalf of the Company, the terms of which are at least as restrictive as Person than the terms contained in the Company Confidentiality Agreement, and (Cii) contemporaneously with furnishing any such nonpublic information accept a Company Acquisition Proposal from a third party, provided the Company first terminates this Agreement pursuant to such partySection 8.1(f). Except as may be restricted by the terms of Contracts entered into by the Company prior to the date of this Agreement, the Company furnishes shall notify Parent orally and in writing of any such nonpublic information inquiries, offers or proposals received after the date of this Agreement (including, without limitation, the terms and conditions of any such proposal and the identity of the person making it), within 24 hours of the receipt thereof, shall keep Parent informed of the status and details of any such inquiry, offer or proposal.
(b) The Company shall immediately cease and cause to Parent (be terminated any existing discussions or negotiations with any Person that relate to any Company Acquisition Proposal. Notwithstanding anything to the extent such nonpublic information has not been previously furnished by contrary contained in this Agreement, the Company to Parentmay give a copy of Sections 4.4(a), 4.4(b) and (ii) in response 5.2 to any Person who submits an unsolicited, unsolicited bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Company Acquisition Proposal to the extent Company.
(c) Parent its subsidiaries and Parents' and its subsidiaries' Representatives shall not directly or indirectly (i) solicit, initiate, encourage or induce the making, submission or announcement of any Parent Acquisition Proposal, (ii) furnish any nonpublic information regarding Parent or any of its subsidiaries to any Person in connection with or in response to a Parent Acquisition Proposal, (iii) negotiate or engage in discussions with any Person with respect to any Parent Acquisition Proposal, (iv) approve, endorse or recommend any Parent Acquisition Transaction or (v) enter into any letter of intent or Contract contemplating or otherwise relating to any Parent Acquisition Proposal; provided, however, that notwithstanding any other provision hereof, Parent may take such actions if (A) the Parent's Board of Directors of the Company concludes shall conclude in good faith, after consultation with its considering applicable provisions of state law, on the basis of oral or written advice of outside counsel, counsel that its failing to take such action would result in substantial likelihood of liability for breach of Parent's Board of Directors' fiduciary obligations duties under applicable law require it to do so, and (B) prior to furnishing such information to or entering into discussions or negotiations with such person or entity, Parent (x) concurrently with entering provides prompt notice to the Company to the effect that it is planning to furnish information to or enter into discussions or negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party person or entity and (y) the Company receives from such party Person an executed confidentiality agreement containing in reasonably customary limitations form on terms not in the use and disclosure of all nonpublic written and oral information furnished aggregate materially more favorable to such party on behalf of the Company, the terms of which are at least as restrictive as Person than the terms contained in the Parent Confidentiality Agreement. The Except as may be restricted by the terms of contracts entered into by Parent prior to the date of this Agreement, Parent shall notify the Company orally and its subsidiaries will in writing of any such inquiries, offers or proposals received after the date of this Agreement (including, without limitation, the terms and conditions of any such proposal and the identity of the person making it), within 24 hours of the receipt thereof, shall keep the Company informed of the status and details of any such inquiry, offer or proposal.
(d) Parent shall immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect Person that relate to any Parent Acquisition Proposal. Without limiting Notwithstanding anything to the foregoingcontrary contained in this Agreement, it is understood that Parent may give a copy of Sections 4.4(c), 4.4(d) and 5.2 to any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed Person who submits an unsolicited bona fide written Parent Acquisition Proposal to be a breach of this Section 5.4 by the CompanyParent.
Appears in 1 contract
Sources: Merger Agreement (Pharmacopeia Inc)
No Solicitation. (a) Subject to At all times during the provisions of Section 5.2(c), from period commencing with the execution and after the date delivery of this Agreement and continuing until the Effective Time or earlier to occur of the termination of this Agreement pursuant to Article VIIARTICLE IX and the Effective Time, except as expressly permitted by this Section 7.2, the Company shall, and shall cause its Subsidiaries and its subsidiaries will and their respective directors, officers and Representatives (who are not directors or officers) to, immediately cease any discussions or negotiations with any Person conducted heretofore with respect to an Acquisition Proposal or proposal that would reasonably be expected to lead to an Acquisition Proposal, terminate access to any physical or electronic dataroom relating to the Company for any such Acquisition Proposal and request the prompt return or destruction of any confidential information provided to any third party in connection with an Acquisition Proposal. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to ARTICLE IX and the Effective Time, except as expressly permitted by this Section 7.2, the Company shall not, nor will they authorize or permit any of and shall cause its Subsidiaries and its and their respective officers, directors, affiliates officers and Representatives (who are not directors or employees or any investment banker, attorney or other advisor or representative retained by any of them officers) not to, directly or indirectly, :
(i) initiate, solicit, initiateinduce, cause, propose or purposefully encourage any inquiry with respect to, or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined)or any inquiry, (ii) participate in any discussions proposal or negotiations regarding, or furnish to any person any non-public request for information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may would reasonably be expected to lead to, any or result in, an Acquisition Proposal, ;
(iiiii) engage in, continue or otherwise participate in any discussions with any person with respect (in each case, other than to any Acquisition Proposal, except as to the existence request clarification of these provisions, (iv) approve, endorse or recommend any an Acquisition Proposal or (v) enter into any letter that has already been made for the purposes of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors of the Company from (i) in response to an unsolicited, bona fide written assessing whether such Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has is or would reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably be expected to lead to a Superior Offer, furnishing nonpublic information Proposal or to notify the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors applicable Person of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors existence of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (Bprovisions of this Section 7.2) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal or any inquiry, proposal or request for information that would reasonably be expected to lead to, or result in, an Acquisition Proposal. Without limiting ;
(iii) disclose any non-public information or data concerning the foregoingCompany or its Subsidiaries to any Person in connection with any Acquisition Proposal or any inquiry, it is understood proposal or request for information that any violation of would reasonably be expected to lead to, or result in, an Acquisition Proposal;
(iv) afford access to the restrictions set forth in the preceding two sentences by any officerbusiness, director properties, assets, books or employee records of the Company or any of its subsidiaries Subsidiaries to any Person in connection with any Acquisition Proposal or any investment bankerinquiry, attorney proposal or request for information that could reasonably be expected to lead to, or result in, an Acquisition Proposal;
(v) recommend, authorize, approve or enter into any merger or other advisor agreement, agreement in principle, letter of intent, term sheet, joint venture agreement, partnership agreement or representative other similar instrument, in each case, providing for or contemplating an Acquisition Proposal (other than a Permitted Confidentiality Agreement);
(vi) otherwise purposefully facilitate any effort or attempt to make an Acquisition Proposal; or
(vii) agree, authorize or commit to do any of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Companyforegoing.
Appears in 1 contract
Sources: Merger Agreement (Syntel Inc)
No Solicitation. (a) Subject to the provisions of Section 5.2(c), from and after From the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Article VIIthe Termination Date, the Company and its subsidiaries will shall not, nor will they authorize or permit any of their respective and shall cause its Subsidiaries and the officers, directors, affiliates or employees or any employees, investment bankerbankers, attorney attorneys, accountants, consultants or other advisor agents, advisors or representative retained by any representatives (collectively, the “Representatives”) of them the Company and each of its Subsidiaries not to, directly or indirectly, :
(i) solicit, initiate, participate in, or knowingly encourage or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined)Proposal, (ii) participate or engage in any discussions or negotiations regarding, or furnish to with any person Person regarding an Acquisition Proposal;
(ii) disclose any non-public information with respect torelating to the Company or any of its Subsidiaries, or take their businesses, assets, liabilities or prospects or afford access to the properties, books or records of the Company or any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead its Subsidiaries to, any Person regarding an Acquisition Proposal, ; or
(iii) waive or modify any confidentiality, standstill or similar agreement with any third party; provided that, prior to obtaining the Company Shareholders’ Approval, the Company may negotiate or otherwise engage in discussions with any person with respect to any Acquisition Proposalwith, except as and furnish non-public information relating to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document Company or any contractof its Subsidiaries, agreement or commitment contemplating their businesses, assets, liabilities or otherwise relating prospects or afford access to any Acquisition Transaction; providedthe properties, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors books or records of the Company from or any of its Subsidiaries to, any Person (ia “Third Party”) in response to who delivers an unsolicited, unsolicited written bona fide written proposal or offer regarding an Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that if the Board board of Directors directors of the Company has reasonably concluded (based on, among other things, the advice of i) determined in good faith (after consulting with a financial advisor of nationally recognized reputation), is ) that such proposal or offer constitutes or reasonably could be expected to lead to a Superior Offer, furnishing nonpublic information Proposal; (ii) provided written notice to the party making Purchaser of its intent to furnish information or enter into discussions with such Acquisition Proposal, and submitting Third Party prior to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing taking any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party action and (yiii) the Company receives obtained from such party Third Party an executed confidentiality agreement containing customary limitations and standstill agreement on the use and disclosure of all nonpublic written and oral information furnished terms no less restrictive with respect to such party on behalf of the Company, the terms of which are at least as restrictive as the terms Third Party than those contained in the Confidentiality Agreement, Agreement (it being understood that such confidentiality agreement and (C) contemporaneously standstill agreement and any related agreements shall not include any provision calling for any exclusive right to negotiate with furnishing any such nonpublic information to such party, Third Party or otherwise having the effect of prohibiting the Company furnishes from satisfying its obligations under this Agreement in full or in part), except that such nonpublic confidentiality agreement may permit such Third Party to share confidential information to Parent (to the extent such nonpublic information has not been previously furnished by with its financing sources and Representatives, provided that the Company shall cause the Third Party to Parent) agree that such financing sources and (ii) Representatives shall also keep such information confidential in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations accordance with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Company.
Appears in 1 contract
No Solicitation. (a) Subject to the provisions of Company agrees that, except as expressly permitted by this Section 5.2(c)6.10, from and after the date of this Agreement hereof until the Effective Time or or, if earlier, the termination of this Agreement pursuant in accordance with Article VIII, neither it nor the Bank nor any of the officers and directors of it or the Bank shall, and that it shall use its reasonable best efforts to Article VIIinstruct and cause its and the Bank’s employees, investment bankers, attorneys, accountants and other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives, collectively, the Company and its subsidiaries will not, nor will they authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them “Representatives”) not to, directly or indirectly, :
(i) initiate, solicit, initiate, seek or encourage or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or expressions of interest or the making of any proposal or offer that constitutes constitutes, or may could reasonably be expected to lead to, any Acquisition Proposal;
(ii) engage in, continue or otherwise participate in or maintain any discussions or negotiations regarding any Acquisition Proposal with any person other than Purchaser;
(iii) engage in discussions with furnish to any person with respect to other than Purchaser any non-public information that Company believes or should reasonably know could be used for the purposes of developing or furthering any Acquisition Proposal, except as to the existence of these provisions, ;
(iv) approve, endorse endorse, recommend, execute or recommend enter into any agreement, letter of intent or contract with respect to an Acquisition Proposal or otherwise relating to or that is intended to or would reasonably be expected to lead to an Acquisition Proposal (other than a confidentiality agreement which expressly permits Company to comply with its obligations pursuant to this Section 6.10) or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transactions contemplated by this Agreement;
(v) submit any Acquisition Proposal or (v) enter into any letter matter related thereto to the vote of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors shareholders of the Company from other than this Agreement and the transactions contemplated hereby; or
(vi) otherwise knowingly facilitate any effort or attempt to make an Acquisition Proposal.
(vii) As used in this Agreement, “Acquisition Proposal” means any proposal or offer with respect to (i) in response to an unsoliciteda merger, bona fide written Acquisition Proposal from a reputable and responsible third party for a joint venture, partnership, consolidation, dissolution, liquidation, tender offer, exchange offer, recapitalization, reorganization, share exchange, business combination or similar transaction or series of related transactions involving Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing or any such nonpublic information to, Significant Subsidiary or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors any other direct or indirect acquisition involving 40% or more of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice total voting power of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure any class of all nonpublic written and oral information furnished to such party on behalf equity securities of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or those of any of its subsidiaries Subsidiaries, or any investment banker, attorney 40% or other advisor or representative more of the Company or any fair market value of the consolidated total assets (including, without limitation, equity securities of its subsidiaries shall be deemed to be a breach Subsidiaries) of Company, in each case other than the transactions contemplated by this Section 5.4 by the CompanyAgreement.
Appears in 1 contract
Sources: Merger Agreement (S Y Bancorp Inc)
No Solicitation. (a) Subject The Company shall, and shall use ------------ --------------- its reasonable best efforts to the provisions of Section 5.2(c)cause its Subsidiaries, from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company and its subsidiaries will and their, officers, directors, employees, financial advisors, attorneys and other advisors, representatives and agents (collectively, "Representatives") to, --------------- immediately cease any discussions or negotiations with third parties with respect to any Takeover Proposal. The Company shall not, nor will they shall it authorize or permit any of their respective officersits Representatives, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them to, directly or indirectly, to (i) directly or indirectly solicit, initiatefacilitate, initiate or encourage the making or induce the makingsubmission of, submission or announcement of any Acquisition Proposal (as hereinafter defined)Takeover Proposal, (ii) enter into any agreement, arrangement or understanding with respect to any Takeover Proposal or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, (iii) initiate or participate in any way in any discussions or negotiations regarding, or furnish or disclose to any person Person (other than a party to this Agreement) any non-public information with respect to, or take any other action to facilitate or in furtherance of any inquiries or the making of any proposal that constitutes constitutes, or may could reasonably be expected to lead to, any Acquisition Proposal, Takeover Proposal or (iiiiv) engage in discussions with grant any person waiver or release under any standstill or similar agreement with respect to any Acquisition Proposal, except as class of the Company's equity securities; provided that prior to the existence acceptance -------- for payment of these provisionsshares of Company Common Stock pursuant to the Offer, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors of the Company from (i) in response to an unsolicitedunsolicited Takeover Proposal that did not result from the breach of this Section 7.07 and following delivery to Parent of notice of the Takeover Proposal in compliance with its obligations under Section 7.07(d) hereof, the Company may participate in discussions or negotiations with or furnish information (pursuant to a confidentiality agreement with customary terms) to any third party which makes a bona fide written Acquisition Takeover Proposal from if (A) a reputable and responsible third party for a Company Acquisition that majority of the Company's Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes determines in good faith, faith (after consultation with its outside counsel, financial advisors) that its fiduciary obligations under applicable law require it taking such action would be reasonably likely to do so, lead to the delivery to the Company of a Superior Proposal and (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice a majority of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes determines in good faith, faith (after consultation receiving the advice of outside legal counsel) that it is necessary to take such actions(s) in order to comply with its outside counsel, that its fiduciary obligations duties under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Companylaw.
Appears in 1 contract
No Solicitation. (a) Subject Notwithstanding any other provision of this Agreement to the provisions of Section 5.2(c)contrary, from and after during the period beginning on the date of this Agreement and continuing until 11:59 p.m., Eastern time, on the Effective Time or termination of this Agreement pursuant to Article VIIfortieth day following the date hereof (the “Go-Shop Period End Date”), the Company AFN and its subsidiaries will not, nor will they authorize or permit any of their respective officers, directors, employees, agents, counsel, accountants, advisors, consultants, affiliates and other representatives (together, the “Representatives”) shall have the right (acting under the direction of the AFN Special Committee) to directly or employees indirectly: (i) initiate, solicit and encourage Takeover Proposals (as hereinafter defined), including by way of public disclosure and by way of providing access to non-public information to any person (each a “Solicited Person”); and (ii) enter into and maintain discussions or negotiations with respect to Takeover Proposals or otherwise cooperate with or assist or participate in, or facilitate any investment bankersuch inquiries, attorney proposals, discussions or other advisor or representative retained by any of them negotiations.
(b) Except as provided in Section 5.2(a), from the date hereof until the Effective Time, each party hereto shall not, and shall cause its subsidiaries and its and their Representatives not to, directly or indirectly, (i) solicit, initiatefacilitate, initiate or encourage or induce the making, submission or announcement (including by way of any Acquisition Proposal (as hereinafter definedfurnishing information), (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action designed or reasonably likely to facilitate or encourage, any inquiries or the making of any proposal that constitutes constitutes, or may reasonably be expected to lead to, any Acquisition Takeover Proposal or (ii) participate in any discussions or negotiations (including by way of furnishing information) regarding any Takeover Proposal. Notwithstanding the foregoing, AFN may continue to take any of the actions described in clauses (iiii) engage in discussions with any person and (ii) above from and after the Go-Shop Period End Date with respect to any Acquisition Proposal, except as third party that has made a bona fide Takeover Proposal (acting under the direction of the AFN Special Committee) prior to the existence Go-Shop Period End Date and with whom it is having ongoing discussions or negotiations as of these provisionsthe Go-Shop Period End Date regarding a bona fide Takeover Proposal (acting under the direction of the AFN Special Committee) (each such party, an “Excluded Party”); provided, that, for purposes of qualifying as an Excluded Party, references to “15% or more” in the definition of Takeover Proposal shall be deemed to be references to a “majority.” Notwithstanding anything contained in this Section 5.2 to the contrary, any Excluded Party shall cease to be an Excluded Party for all purposes under this Agreement immediately at such time as the Takeover Proposal made by such party is withdrawn, is terminated or expires with respect to such Takeover Proposal. At the Go-Shop Period End Date, other than with respect to Excluded Parties, AFN shall immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Solicited Person conducted theretofore by AFN, any of its subsidiaries or any of their respective Representatives with respect to any Takeover Proposal and cause to be returned or destroyed all confidential information provided or made available to such Solicited Person on behalf of AFN or any of its subsidiaries.
(c) Notwithstanding anything to the contrary contained in this Agreement, at any time following the date of this Agreement and prior to obtaining the AFN Stockholder Approval, if the board of directors of AFN receives a Takeover Proposal which the board of directors of AFN concludes in good faith constitutes a Superior Proposal (as hereinafter defined), the board of directors of AFN may furnish information with respect to itself and its subsidiaries to the person making such Takeover Proposal. Notwithstanding anything to the contrary contained in this Section 5.2(c), prior to obtaining the AFN Stockholder Approval, AFN shall be permitted to take the actions permitted by Section 5.2(b) with respect to any Excluded Party. From and after the Go-Shop Period End Date, AFN shall promptly (and in any event within two business days) notify C&C in the event it receives a Takeover Proposal from a person (other than an Excluded Party) or any material revisions thereto. Without limiting the foregoing, AFN shall promptly (and in any event within two business days) notify C&C if it determines to begin providing information concerning a Takeover Proposal from a person (other than an Excluded Party) pursuant to this Section 5.2(c), indicating, in connection with such notification, the name of such person and 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 C&C informed, on a current basis, of the status and terms of any such proposals or offers (including any amendments thereto) and the status of any such discussions or negotiations, including any change in AFN’s intentions with respect to the Combination.
(d) Subject to the duties of the board of directors of AFN under applicable Law, AFN shall include in the Proxy Statement/Prospectus the recommendation of its board of directors that the AFN Stockholder Approval be given; provided, however, that the board of directors of AFN may, prior to the AFN Stockholder Approval, (ivx) approvewithhold, endorse withdraw, qualify or modify, or publicly propose to withhold, withdraw, qualify or modify, the approval or recommendation by its board of directors or any committee thereof of the issuance of AFN Shares in the Merger or any other transaction contemplated by this Agreement, (y) approve or recommend or take no position with respect to, or publicly propose to approve or recommend or take no position with respect to, any Acquisition Takeover Proposal (any of the actions described in the foregoing clauses (x), and (y) being a “Change in the Recommendation”); provided, that any communication with stockholders regarding a Takeover Proposal that is not explicitly included in (x) and (y) shall not constitute a Change in Recommendation and that nothing herein shall prevent the board of AFN or any committee from communicating the terms or status of any Takeover Proposal to AFN’s stockholders or give rise to any termination, fee or other rights to any other party under this Agreement if it does so; and provided, further, that the foregoing shall not prohibit accurate disclosure (and such disclosure shall not be deemed to be a Change in Recommendation) of factual information regarding the business, financial condition or results of operations of AFN or the fact that a Takeover Proposal has been made, the identity of the party making such proposal or the material terms of such proposal in the Proxy Statement/Prospectus or otherwise, to the extent that the board of directors of AFN in good faith determines that such information, facts, identity or terms is required to be disclosed under applicable Law, or (vz) terminate this Agreement and cause or permit AFN to enter into any letter of intent or similar document or any other contract, agreement agreement, commitment or commitment contemplating or otherwise relating other similar arrangement related to any Acquisition TransactionTakeover Proposal; provided, however, that nothing contained the board of directors of AFN may not take any action listed in this Section 5.4 sentence in connection with a Takeover Proposal unless the board has determined that such Takeover Proposal constitutes a Superior Proposal. Neither the board of managers of C&C nor any committee thereof shall prohibit make a Change in the ----------------- Board Recommendation or cause or permit C&C to terminate this Agreement and enter into any letter of Directors intent or other contract, agreement, commitment or other similar arrangement (other than a confidentiality or similar agreement) related to any Takeover Proposal.
(e) For purposes of this Agreement, “Takeover Proposal” means any inquiry, proposal, offer or expression of interest by any third party relating to a merger, joint venture, partnership, recapitalization, reorganization, share exchange, tender offer, liquidation, dissolution, consolidation or other combination involving any of the Company from parties hereto or any of its subsidiaries, or any purchase of more than 15% of the consolidated assets of each of the parties hereto (including the shares and assets of its subsidiaries) or more than 15% of the total voting power of any class of equity securities (other than pursuant to the exercise of stock or unit options in accordance with their terms) or the issuance of any securities (or rights to acquire securities) of each of the parties hereto or any of its subsidiaries, or any similar transaction, or any agreement, arrangement or understanding requiring any of the parties hereto to abandon, terminate or fail to consummate the Combination or the transactions contemplated by this Agreement. Any material modification of a Takeover Proposal (including any modification of the economic terms) shall constitute a new Takeover Proposal. For purposes of this Agreement, a “Superior Proposal” means a bona fide Takeover Proposal for a transaction in which a majority of the stock (or equity interests) or assets of AFN are acquired by a third party, including by merger, consolidation or other business combination (i) in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition on terms that the Board board of Directors directors of the Company has reasonably concluded AFN determines in good faith (based on, among other things, the advice of after consultation with a financial advisor of nationally recognized reputation)) to be more favorable to its stockholders from a financial point of view than the Combination (taking into account all aspects of the proposal, is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, the proposal and submitting any changes to the party making such Acquisition Proposal written questions, Combination proposed by each of the sole purpose of which is to elicit clarifications as other parties hereto in response to the material terms receipt by AFN of such Acquisition Proposal so as Superior Proposal), (ii) that is not subject to enable any material contingency, including any contingency related to financing, unless, in the Board of Directors good faith judgment of the Company to make a determination whether to construe board of directors of AFN, such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board contingency is reasonably capable of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any being satisfied by such nonpublic information to, or written questions to such third party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (Ciii) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) that is otherwise reasonably capable of being consummated in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Companytimely fashion.
Appears in 1 contract
No Solicitation. (a) Subject to the provisions of Section 5.2(c), from From and after the date of this Agreement until the Effective Time or earlier of (i) the Closing Date and (ii) termination of this Agreement pursuant to Article VIIARTICLE 10, the Company and neither Seller nor any of its subsidiaries Subsidiaries will, nor will notthey ---------- authorize or permit any of their officers, directors or affiliates to, nor will they authorize or knowingly permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them to, directly or indirectly, (i) solicit, initiate, knowingly encourage or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined), (ii) engage or participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or knowingly take any other action to facilitate any inquiries or the making of any proposal that constitutes or may could reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal other than in compliance with Section ------- 7.17(c), or (viv) enter into any letter of intent or similar document or any contract, ------- --- contract agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 7.8 shall prohibit the ----------------- Board of Directors of the Company Seller from (i) in response ----------- to an unsolicited, a bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Qualifying Acquisition Transaction not solicited by Seller in violation of this Section 7.8(a) that the -------------- Board of Directors of the Company Seller has reasonably in good faith concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected likely to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company Seller to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company Seller concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company Seller gives Parent Buyer written notice of the CompanySeller's intention to furnish nonpublic information, or written questions to such party and (y) the Company Seller receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the CompanySeller, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company Seller furnishes such nonpublic information to Parent Buyer (to the extent such nonpublic information has not been previously furnished by the Company Seller to ParentBuyer) and (ii) in response to an unsolicited, a bona fide written Acquisition Proposal not solicited by Seller in violation of this Section 7.8(a) that constitutes a Superior Offer, -------------- engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company Seller concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company Seller gives Parent Buyer written notice of the CompanySeller's intention to enter into negotiations with such party and (y) the Company Seller receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Company.confidentiality
Appears in 1 contract
Sources: Asset Purchase Agreement (Palm Inc)
No Solicitation. (a) Subject to During the provisions period beginning on the date of Section 5.2(c), from this Agreement and continuing until 11:59 p.m. (New York time) on the date that is 30 days after the date of this Agreement until (the Effective Time or termination of this Agreement pursuant to Article VII"Solicitation Period End Date"), the Company Company, its Subsidiaries, and its subsidiaries will not, nor will they authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them Representatives shall have the right to, directly or indirectly, indirectly (i) solicit, initiateinitiate or encourage any inquiry with respect to, encourage or induce the making, submission or announcement of of, any Acquisition Proposal (as hereinafter defined), and (ii) participate in any discussions or negotiations regarding, or and furnish to any person any non-public Person information with respect to, or and take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may lead to, an Acquisition Proposal; provided, however, that the Company shall not, and shall not authorize or permit any of its Subsidiaries or any Representative of the Company or its Subsidiaries to, provide to any Person any material non-public information unless the Company receives from such third party an executed confidentiality agreement with confidentiality provisions (including customary standstill and non-solicitation provisions for such a transaction) in form no more favorable, in the aggregate, to such Person than those confidentiality provisions contained in the Confidentiality Agreement, provided that the Company shall promptly provide to Purchaser any material non-public information concerning the Company or its Subsidiaries that is provided to any Person given such access but which was not previously provided to Purchaser and its Representatives. Purchaser agrees that, during the period from the date hereof to and including the tenth (10th) Business Day after the Solicitation Period End Date, neither it nor any Affiliate or Subsidiary of Purchaser shall, and that it shall use its reasonable best efforts to cause its and their respective Representatives not to, knowingly interfere with or knowingly participate in discussions with, any Person that has made, or is considering or participating in discussions or negotiations with the Company, its Subsidiaries or their respective Representatives regarding, an Acquisition Proposal.
(b) Subject to the provisions of this Section 6.5, and except as it may relate to any Person or group of related Persons from whom the Company has received, prior to the Solicitation Period End Date, a bona fide Acquisition Proposal that the Board of Directors determines in good faith (such determination to be made on or prior to the Solicitation Period End Date), after consultation with its outside legal counsel and independent financial advisor, constitutes or could reasonably be expected to result in a Superior Proposal, including adequate sources of financing (each such Person or group, an "Excluded Party"; provided, however, that any such Person or group shall cease to be an Excluded Party at such time after the Solicitation Period End Date as negotiations between the Company and such Person or group with respect to Acquisition Proposal(s) made by such Person or group shall have terminated), (A) on the Solicitation Period End Date, the Company shall, and shall cause its Subsidiaries to, and shall direct its and their respective Representatives to, immediately cease any solicitation, encouragement, discussions or negotiations with any parties that may be ongoing with respect to any Acquisition Proposal and (B) during the period beginning on the Solicitation Period End Date and continuing until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VIII, the Company agrees that neither it nor any Subsidiary of the Company shall, and that it shall direct its and their respective Representatives not to, directly or indirectly, (i) solicit, participate in, initiate, knowingly facilitate or encourage (including by way of furnishing information), or knowingly take any other action designed or reasonably likely to facilitate or encourage, any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition ProposalProposal (including by way of making any public announcement of its intention to do any of the foregoing), (iiiii) engage participate in any discussions with any person with respect to or negotiations (including by way of furnishing information) regarding any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (viii) enter into any letter agreement (or agreement in principle) with respect to an Acquisition Proposal (other than a confidentiality agreement contemplated by Section 6.5(c)). No later than two (2) Business Days after the Solicitation Period End Date, the Company shall notify Purchaser in writing of intent or similar document the identity of each Excluded Party and shall promptly provide to Purchaser a copy of any Acquisition Proposal made in writing provided to the Company or any contractof its Subsidiaries prior to the Solicitation Period End Date and a written summary of the material terms of any such Acquisition Proposal not made in writing.
(c) Notwithstanding the limitations set forth in Section 6.5(b), agreement or commitment contemplating or otherwise relating to at any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit time from the ----------------- Board Solicitation Period End Date and continuing until the earlier of Directors the receipt of the Company from (i) in response Shareholder Approval and the termination of this Agreement pursuant to Article VIII, if the Company or any of its Representatives receives an unsolicited, bona fide unsolicited written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes determines in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do solegal counsel and independent financial advisor, (Bi) constitutes a Superior Proposal or (ii) could reasonably be expected to result in a Superior Proposal, then the Company may take the following actions: (x) concurrently with furnish non-public information to the Person making such Acquisition Proposal (if, and only if, prior to so furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party the Person an executed confidentiality agreement containing with confidentiality provisions (including customary limitations on standstill and non-solicitation provisions for such a transaction) in form no more favorable in the use and disclosure of all nonpublic written and oral information furnished aggregate to such party on behalf of the Company, the terms of which are at least as restrictive as the terms Person than those confidentiality provisions contained in the Confidentiality Agreement, ) and (Cy) contemporaneously engage in discussions or negotiations with furnishing any such nonpublic information Person with respect to such partyAcquisition Proposal.
(d) The Company shall promptly (and in any event no later than 48 hours) notify Purchaser in the event that the Company, its Subsidiaries or Representatives receives (i) any Acquisition Proposal or (ii) any inquiry or request for discussions or negotiations regarding any Acquisition Proposal, including during the period from the date of this Agreement to the Solicitation Period End Date. The Company shall notify Purchaser promptly (and in any event no later than 48 hours) of the identity of such Person and provide a copy of such Acquisition Proposal, inquiry or request (or, where no such copy is available, a written description of such Acquisition Proposal, inquiry or request), including any material modifications thereto or to any Acquisition Proposal made by an Excluded Party. The Company shall keep Purchaser reasonably informed on a current basis (and in any event no later than 48 hours) after the occurrence of any material changes or developments of the status of any Acquisition Proposal, inquiry or request (including the material terms and conditions thereof and of any material modification thereto). Without limiting the foregoing, the Company furnishes shall promptly (within 48 hours) notify Purchaser orally or in writing if it determines to begin providing or making available information or to engage in discussions or negotiations concerning an Acquisition Proposal pursuant to Section 6.5(c). The Company agrees that it will not enter into any confidentiality agreement with any person subsequent to the date hereof which prohibits the Company from providing any such nonpublic information to Parent (Purchaser. Notwithstanding the foregoing, during the period from the date of this Agreement to the extent such nonpublic information has not been previously furnished by Solicitation Period End Date, the Company shall not be required to Parent) and (ii) in response to disclose the identity of the Person making an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in nor shall the Company be required to keep Purchaser informed as to the status of any discussions or negotiations with such Person unless there has been a material modification to the party making such financial terms of the Acquisition Proposal to or in the extent that (A) event the Board of Directors of the Company concludes determines in good faith, after consultation with its outside counsellegal counsel and independent financial advisor, that its fiduciary obligations under applicable law require it such Acquisition Proposal (i) constitutes a Superior Proposal or (ii) could reasonably be expected to do so, result in a Superior Proposal in which case the Company shall promptly (Bwithin 48 hours) notify Purchaser orally or in writing of such facts.
(xe) concurrently Other than in accordance with entering into negotiations with such partythis Section 6.5, the Company gives Parent written notice Board of Directors shall not (i) change, qualify, withdraw or modify, or propose publicly to change, qualify, withdraw or modify, in a manner adverse to Purchaser, the approval or recommendation by the Board of Directors of the Company's intention Merger or this Agreement or the other Transactions contemplated hereby; (ii) approve, adopt or recommend, or propose publicly to approve, adopt or recommend, any Acquisition Proposal; (iii) make any recommendation in connection with a tender offer or exchange offer other than a recommendation against such offer (each of the foregoing, a "Change of Recommendation"); or (iv) authorize the Company to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality any letter of intent, merger, acquisition, or similar agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal other than any confidentiality agreement to be entered into by the Company as contemplated by this Section 6.5 (each a "Company Acquisition Agreement:"); provided, however, that, in response to the receipt of a Superior Proposal that has not been withdrawn or abandoned, the Board of Directors may, at any time prior to obtaining the Company Shareholder Approval, make either (x) a Change of Recommendation and/or (y) terminate this Agreement in accordance with Section 8.1(c) to enter into a Company Acquisition Agreement with respect to such Superior Proposal (a "Superior Termination"); provided further, that, the Board of Directors may not effect such Change of Recommendation or a Superior Termination, in each case in connection with a Superior Proposal. Without limiting , unless both of the foregoingfollowing conditions have been met:
(i) the Company shall have provided prior written notice to Purchaser, at least five (5) Business Days in advance (or three (3) Business Days if such written notice is provided on or prior to the Solicitation Period End Date) (as applicable, the "Notice Period"), of its intention to effect a Change of Recommendation and/or Superior Termination in response to such Superior Proposal, which notice shall in addition specify the material terms and conditions (including price) of any such Superior Proposal (including the identity of the Person or group of Persons making the Superior Proposal), and contemporaneously with providing such notice shall have provided a copy of the relevant proposed acquisition agreement and other material documents related thereto (provided that no information need be provided regarding the terms, structure or other financial information regarding any debt financing commitments) with the party making such Superior Proposal (all such addition specified information being deemed the "Superior Proposal Information"); and
(ii) prior to effecting such Change of Recommendation and/or Superior Termination in response to a Superior Proposal, the Company shall, and shall cause its legal and financial advisors to, during the Notice Period, negotiate with Purchaser in good faith (to the extent Purchaser desires to negotiate) to make such adjustments to the terms and conditions of this Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal.
(f) In the event that during the Notice Period any revisions are made to the Superior Proposal to which the final proviso of Section 6.5(e) applies and the Board of Directors or any committee thereof in its good faith judgment determines such revisions are material (it is understood being agreed that any violation change in the purchase price in such Superior Proposal shall be deemed a material revision), the Company shall be required to deliver a new written notice to Purchaser and Merger Sub and to comply with the requirements of such proviso with respect to such new written notice, except that the Notice Period shall be reduced to three (3) Business Days (or two (2) Business Days if the first Notice Period under Section 6.5(e) initially commences on or prior to the Solicitation Period End Date). Notwithstanding anything to the contrary in this Agreement, no "stop-look-and-listen" communication to the Company's shareholders of the restrictions set forth nature contemplated by Rule 14d-9 of the Exchange Act shall be deemed to constitute a Change of Recommendation.
(g) Nothing in this Agreement shall prohibit or restrict the preceding two sentences by Board of Directors from making a Change of Recommendation to the extent that the Board of Directors determines in good faith, for reasons not related to the receipt of an Acquisition Proposal, after consultation with the Company's outside legal counsel, that the failure of the Board of Directors to effect a Change of Recommendation would be inconsistent with the directors' fiduciary duties under applicable Legal Requirements.
(h) For purposes of this Agreement, "Acquisition Proposal" shall mean any officerinquiry, director proposal or employee offer from any Person (other than Purchaser and its Subsidiaries) relating to, in a single transaction or series of related transactions, any (A) acquisition of assets of the Company and its Subsidiaries (including securities of Subsidiaries, but excluding sales of assets in the ordinary course of business) equal to 20% or more of the Company's consolidated assets or to which 20% or more of the Company's revenues or earnings on a consolidated basis are attributable, (B) acquisition of 20% or more of the outstanding Company Shares, (C) tender offer or exchange offer that if consummated would result in any Person beneficially owning 20% or more of its subsidiaries the outstanding Company Shares, (D) merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or (E) any investment bankercombination of the foregoing types of transactions if the sum of the percentage of consolidated assets, attorney consolidated revenues or earnings and Company Shares involved is 20% or more; in each case, other advisor or representative than the Transactions. As used in this Agreement, "Superior Proposal" shall mean any bona fide written Acquisition Proposal on terms which the Board of Directors of the Company determines in good faith, after consultation with the Company's outside legal counsel and independent financial advisor, to be more favorable from a financial point of view to the holders of Company Shares than the Merger, taking into account all the terms and conditions of such proposal (including the likelihood and timing of consummation thereof), and this Agreement (including any changes to the terms of this Agreement proposed by Purchaser to the Company in writing in response to such proposal or any otherwise), provided that for purposes of its subsidiaries the definition of "Superior Proposal", the references to "20%" in the definition of Acquisition Proposal shall be deemed to be a breach of this Section 5.4 by the Companyreferences to "65%".
Appears in 1 contract
Sources: Merger Agreement (Eci Telecom LTD/)
No Solicitation. (a) Subject to Until the provisions earlier of Section 5.2(c), from and after the date of this Agreement until Closing or the Effective Time or termination of this Agreement pursuant to Article VIIAgreement, the Company and its subsidiaries will Seller shall not, and shall not permit any of its Affiliates to, nor will they shall it authorize or permit any of their respective its officers, directors, affiliates employees, investment bankers, financial advisors, attorneys, accountants or employees other representatives retained by it or any investment banker, attorney or other advisor or representative retained by any of them its Affiliates ("REPRESENTATIVES") to, directly or indirectly, (i) solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate solicit any inquiries or the making of any proposal that constitutes which constitutes, or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Alternative Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors Seller may, and may permit its Representatives to (a) furnish information to Persons making unsolicited inquiries or proposals related to a possible Alternative Transaction or (b) enter into negotiations or discussions with such Persons. Additionally, prior to Seller's stockholder's approval of the Company from Transaction, Seller may enter into one or more agreements providing for one or more possible Alternative Transactions; provided that (i) within five (5) days of the commencement of any negotiations or discussions with a third party relating to a possible Alternative Transaction, Seller gives Buyer notice in response to an unsolicited, bona fide written Acquisition Proposal from writing of the start of any such negotiations or discussions; (ii) if Seller commences negotiations or discussions with a reputable and responsible third party for a Company Acquisition possible Alternative Transaction on or after the thirty-first day following the date of this Agreement, Buyer shall have the right, but not the obligation, to terminate this Agreement at any time after receipt of such notice; and (iii) within five (5) business days of the commencement of any negotiations or discussions with a third party relating to a possible Alternative Transaction that consists of a sale of the stock of Seller, but in any event, prior to the execution of a definitive purchase agreement with respect to such possible Alternative Transaction, Seller shall give the stock purchaser in the possible Alternative Transaction written notice that Buyer has informed Seller that Buyer believes that the consummation of the possible Alternative Transaction will give Buyer the right to terminate the Disney Distribution Agreement. If at any point Seller determines that all Alternative Transactions cannot or will not be consummated for any reason, Seller must give Buyer written notice of such fact and, if Buyer has the right to terminate this Agreement pursuant to (ii) above, and has not already exercised such right, Buyer shall have five (5) business days from the date it receives such notice to notify Seller whether Buyer elects to terminate this Agreement or proceed with the consummation of the Transaction in accordance with the terms of this Agreement. In the event that Buyer elects to consummate the Transaction (or does not have the right to terminate this Agreement pursuant to (ii) above), the parties shall proceed to consummate the Transaction in accordance with the terms of this Agreement, provided, however the Closing Date set forth in Section 1.2 above shall be extended by the number of days Seller has spent pursuing said Alternative Transaction. Nothing contained in this Agreement shall prohibit Seller or the members of its Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation from complying with its outside counsel, that its and their (a) fiduciary duties; and (b) obligations under applicable state and federal law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party rules and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Companyregulations promulgated thereunder.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Cinergi Pictures Entertainment Inc)
No Solicitation. (a1) Subject to the provisions of Section 5.2(c), from For and during that period which ends thirty (30) days after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VIIhereof, the Company Company, and its subsidiaries those acting on behalf of any of the Company, will not, nor and the Company will they authorize or permit any of their respective use its best efforts to cause its officers, directorsemployees, affiliates or employees or agents, and representatives (including any investment banker, attorney or other advisor or representative retained by any of them to) not, directly or indirectly, (i) to solicit, initiateencourage, encourage or induce initiate any discussions with, or negotiate or otherwise deal with, or provide any information to, any person other than Sycamore and its officers, employees, and agents, concerning any merger, sale of substantial assets, or similar transaction involving the making, submission Company or announcement any sale of any Acquisition of its capital stock. The Company will notify Sycamore immediately upon receipt of any inquiry, offer or proposal relating to any of the foregoing. None of the foregoing shall prohibit providing information to others in a manner in keeping with the ordinary conduct of the Company’s business, or providing information to government authorities.
(2) Notwithstanding the foregoing or any other provision of this Agreement, at any time prior to the Closing, in the event that the Company Directors determine in good faith by a majority vote, based on the advice of its outside legal counsel, that there is a reasonable basis requiring the Company to consider a Favorable Third Party Proposal (as hereinafter defined)defined below) to comply with its fiduciary duties, (ii) participate in any discussions or negotiations regarding, or the Company may furnish to any person any non-public information with respect to, to the Company to the person who made the Favorable Third Party Proposal pursuant to a confidentiality agreement and participate in discussions or take any other action to facilitate any inquiries or negotiations with such person regarding the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Favorable Third Party Proposal. In the event the Company Directors receive a Favorable Third Party Proposal, which they determine is more favorable to the Company’s shareholders than the terms and conditions of the Transaction, no later than the third (iii3) engage in discussions business day following the date upon which the Company Directors determine that such Favorable Third Party Proposal is a more favorable proposal than the Transaction provide written notice to Sycamore and Sweet Spot that specifies the material terms and conditions of that Favorable Third Party Proposal. Sycamore and Sweet Spot shall have the option for ten (10) business days after receipt of such notice to amend the terms and conditions of the Transaction to cause this Transaction to be no less favorable than the Favorable Third Party Proposal. In the event that Sycamore and Sweet Spot do not agree to the modification of the terms and conditions of the Transaction at the end of that ten (10) business day period, the Company Directors may, with written notice to Sycamore and Sweet Spot, and payment of a termination fee of $50,000.00, terminate this Agreement (and concurrently with such termination, if they so determine, cause the Company to enter into any person agreement with respect to any Acquisition that Favorable Third Party Proposal) (the “Termination Fee”). The Termination Fee shall be allocated and shared by Sycamore and Sweet Spot (each, except as a “Recipient”) each in that amount which is equal to that percentage which the total fees and costs paid by such Recipient in connection with the Transaction bears to the existence total amount of these provisionsfees and costs paid by both Recipients in connection with the Transaction and the Merger, and each of them.
(iv3) approveAs used in this Agreement, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract“Favorable Third Party Proposal” means a written proposal from a credible, agreement or commitment contemplating or otherwise bona fide third party relating to any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board direct or indirect acquisition or purchase of Directors 50% or more of the Company from (i) in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf equity securities of the Company, the terms of which are at least as restrictive as the terms contained any tender offer or exchange offer that if consummated would result in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors person beneficially owning 50% or more of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice combined voting power of the Company's intention to enter into negotiations with such party and (y) ’s voting equity securities, or any merger, consolidation, business combination, share exchange, recapitalization, liquidation, dissolution or similar transaction involving the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf or combined voting power of the Company, and otherwise on terms which the terms of which are at least as restrictive as the terms contained Company Directors determine in the Confidentiality Agreement. The Company their good faith judgment, taking into account legal, financial, regulatory and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation other aspects of the restrictions set forth in proposal deemed appropriate by the preceding two sentences by any officerCompany Directors, director or employee to be more favorable to the stockholders of the Company than the Transaction (taking into account any changes to the terms and conditions regarding the Transaction and amendments to this Agreement proposed by Sycamore or any Sweet Spot in response to the receipt by Sycamore and Sweet Spot of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Companyinformation about that Favorable Third Party Proposal).
Appears in 1 contract
Sources: Agreement for the Purchase and Sale of Stock (Imarx Therapeutics Inc)
No Solicitation. (a) Subject The Company agrees that, prior --------------- to the provisions of Section 5.2(c)Effective Time, from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company and its subsidiaries will it shall not, nor will they and shall not authorize or permit any of their respective its Subsidiaries or any of its or its Subsidiaries' directors, officers, directorsemployees, affiliates agents or employees or any investment banker, attorney or other advisor or representative retained by any of them torepresentatives, directly or indirectly, (i) to solicit, initiate, initiate or encourage (including by way of furnishing or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any person any disclosing non-public information with respect to, or take any other action to facilitate information) any inquiries or the making of any proposal that constitutes with respect to any merger, consolidation or may reasonably be expected to lead toother business combination involving the Company or the acquisition of all or substantially all of the assets or capital stock of the Company (an "Acquisition Transaction") or negotiate, any Acquisition Proposal, (iii) explore or otherwise engage in substantive discussions with any person (other than Buyer, Newco or their respective directors, officers, employees, agents and representatives) with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse Transaction or recommend any Acquisition Proposal or (v) enter into any letter of intent agreement, arrangement or similar document understanding requiring it to abandon, terminate or fail to consummate the Merger or any contractother transactions contemplated by this Agreement; provided that (i) the Company may, agreement or commitment contemplating or otherwise relating in response to a bona fide unsolicited written proposal with respect to an Acquisition Transaction from a credible third party that is not subject to any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit material financing uncertainties and is more favorable to the ----------------- Board of Directors shareholders of the Company from than the Merger, furnish or disclose non-public information to, and negotiate, explore or otherwise engage in substantive discussions with, or enter into such an agreement with, such third party (provided that it shall concurrently with entering into such agreement pay or cause to be paid to Buyer the amount specified in Section 10.04(b) hereof) and (ii) upon receipt of an unsolicited written proposal with respect to an Acquisition Transaction that appears, on its face, to meet the requirements set forth in clause (i) above, the Company may explore such proposal with such other person for the purpose of determining whether it meets such requirements, in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that each case only if the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes determines in good faithfaith by a majority vote, after consultation with its financial advisors and outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf legal counsel of the Company, that failing to take such action would constitute a breach of the terms fiduciary duties of which are at least as restrictive as the terms contained in the Confidentiality Board.
(b) Upon executing this Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to shall immediately advise Buyer in writing regarding the extent such nonpublic information has not been previously furnished by identity of any other persons or entities with whom the Company to Parent) and (ii) in response to an unsolicitedhas had direct or indirect contact since September 30, bona fide written 1997 regarding a possible Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such partyTransaction. Hereafter, the Company gives Parent written notice shall immediately advise Buyer in writing of the Company's intention receipt, directly or indirectly, of any inquiries or proposals relating to enter into negotiations with an Acquisition Transaction and any actions taken pursuant to Section 6.04(a) and furnish to Buyer either a copy of such party and (y) the Company receives from proposal or a written summary of such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Companyproposal.
Appears in 1 contract
No Solicitation. (a) Subject to From the provisions date hereof until the earlier of Section 5.2(c), from and after the date of the Shareholders Meeting or the date this Agreement until the Effective Time or termination of this Agreement pursuant to Article VIIis terminated, the Company and its subsidiaries will shall not, nor will they it authorize or knowingly permit any of their respective its officers, directors, affiliates or employees or any investment banker, attorney attorney, accountant, or other advisor or representative retained by any of them it (collectively, “Representatives” but excluding the Guarantors, when used with respect to the Company or its affiliates) to, and the Company shall direct its Representatives not to, directly or indirectly, : (i) solicit, initiate, encourage knowingly encourage, support, facilitate or induce the making, submission or announcement of of, any Acquisition Proposal (as hereinafter defined), Proposal; (ii) participate in any negotiations or discussions or negotiations regarding, or furnish to any person any non-public information with respect to, to any Acquisition Proposal or take any other action to facilitate any inquiries or the making of any proposal or inquiry that constitutes or may could reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, ; (iviii) approve, endorse or recommend any Acquisition Proposal Proposal; or (viv) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise obligation relating to any Acquisition Transaction; providedTransaction (as defined in Section 4.4(d)(ii) hereof). Notwithstanding the foregoing, however, that nothing contained in the terms of this Section 5.4 4.4 shall not prohibit the ----------------- Board of Directors of the Company from furnishing non-public information regarding the Company and its subsidiaries to, entering into a confidentiality agreement with or entering into negotiations or discussions with, any person or group of persons (iand its or their Representatives) in response to an unsolicited, bona fide unsolicited written Acquisition Proposal from a reputable submitted by such person or group (and responsible third party for a Company Acquisition not withdrawn) that the Board of Directors of (or the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (ASpecial Committee) the Board of Directors of the Company concludes in good faith, after consultation with its outside counselcounsel and the Committee Financial Advisor or another qualified financial advisor, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information toconstitutes, or written questions is reasonably likely to such party, lead to a Superior Offer (as defined in Section 4.4(d)(iii)) if: (1) neither the Company gives Parent written notice nor its Representatives shall have materially violated any of the Company's intention to furnish nonpublic information, or written questions to such party and (y) restrictions set forth in this Section 4.4 in connection with the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that question; (A2) the Board of Directors of (or the Company Special Committee) concludes in good faith, after consultation with its outside legal counsel, that its the failure to take such action would be inconsistent with the fiduciary obligations duties of the Board (or the Special Committee) to the Company’s shareholders (other than the Guarantors) under applicable law require it law; and (3)(x) at least one (1) business day prior to do sofurnishing any such information to, (B) (x) concurrently with or entering into negotiations with or discussions with, such partyperson or group, the Company gives Parent written notice of the identity of such person or group and of the Company's ’s intention to furnish information to, or enter into negotiations with or discussions with, such party person or group, and (y) prior to providing any non-public information regarding the Company, the Company receives from such party person or group an executed confidentiality agreement containing customary limitations on agreement. It is expressly understood and agreed that (A) informing any person as to the use existence of these provisions in response to any unsolicited Acquisition Proposal, proposal or inquiry, without providing any additional non-public information, and disclosure of all nonpublic written and oral information furnished to such party (B) any actions taken by or on behalf of the Company or its subsidiaries that are initiated or permitted by or on behalf of Parent, Merger Sub or any Guarantor that otherwise would violate this Agreement shall not constitute, or be deemed to be, a violation of this Agreement by the Company, including this Section 4.4).
(b) From and after the execution of this Agreement, in addition to the obligations of the Company set forth in Section 4.4(a) hereof, the Company shall promptly advise Parent orally and in writing (within two business days) of any request received by the Company for non-public information with respect to an Acquisition Proposal or the receipt by the Company of any Acquisition Proposal, the material terms and conditions of such request or Acquisition Proposal, the identity of the person or group making any such request or Acquisition Proposal and a copy of all material written materials provided by or on behalf of such person or group in connection with such request or Acquisition Proposal (other than any information such person or group identifies as confidential (“Third Party Confidential Information”)), provided, however, that the parties hereby acknowledge that the terms and conditions of which are at least as restrictive as the terms contained in Acquisition Proposal itself shall not under any circumstance be deemed to be Third Party Confidential Information. After receipt of any such request or Acquisition Proposal, the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect shall keep Parent reasonably informed of the status thereof (including material amendments to any Acquisition Proposal. Without limiting ) and shall promptly provide Parent a copy of all written materials (other than Third Party Confidential Information) subsequently provided by or on behalf of such person or group in connection with such request or Acquisition Proposal.
(c) Notwithstanding anything in this Agreement to the foregoingcontrary, it nothing in this Agreement shall prevent the Board or the Special Committee from withdrawing, amending, changing or modifying its recommendation in favor of the approval of this Agreement or approving or recommending any other Acquisition Proposal or approving or recommending or causing or permitting the Company to enter into any letter of intent, agreement or obligation with respect to an other Acquisition Proposal (any of the foregoing actions, whether by the Board, the Special Committee or another Board committee, a “Change of Recommendation”), at any time prior to the Company Shareholder Approval, but the Board (or the Special Committee) may do so only if all of the following conditions in clauses (i) through (v) are met: (i) if the Change of Recommendation is understood precipitated by the submission of an Acquisition Proposal that has not been withdrawn, the Board (or the Special Committee) determines that such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Offer; (ii) neither the Company nor any violation of its subsidiaries nor any of their respective Representatives shall have materially violated any of its covenants or any of the restrictions on soliciting Acquisition Proposals set forth in Sections 4.3 and 4.4 hereof; (iii) the Company shall have delivered to Parent written notice (a “Change of Recommendation Notice”) at least three business days prior to effecting such Change of Recommendation, which shall (A) state expressly that the Board (or the Special Committee) intends to effect a Change of Recommendation, and set forth in reasonable detail the facts and circumstances giving rise to the Board’s (or the Special Committee’s) decision to effect a Change of Recommendation and that the Board (or the Special Committee) has determined in good faith (after consultation with legal counsel) that the failure to take such action would be inconsistent with the fiduciary duties of the Board (or the Special Committee) to the shareholders of the Company (other than the Guarantors) under applicable Legal Requirements, and (B) if the Change of Recommendation is precipitated by the submission of an Acquisition Proposal that has not been withdrawn, such notice shall also disclose the identity of the person or group making such Acquisition Proposal and include a copy of any definitive documentation relating to such Acquisition Proposal and such other documentation reflecting the final terms and conditions of such Acquisition Proposal as are being considered by the Board (or the Special Committee) other than Third Party Confidential Information; (iv) after delivering the Change of Recommendation Notice, the Company shall provide Parent with a reasonable opportunity to propose adjustments in the terms and conditions of this Agreement during such three business day period, and negotiate in good faith with Parent with respect thereto during such three business day period; and (v) the Board (or the Special Committee) must have concluded in good faith, after consultation with its outside legal counsel, that in light of the facts and circumstances giving rise to the Board’s (or the Special Committee’s) decision to effect or consider effecting a Change of Recommendation as set forth in the Change of Recommendation Notice, and after considering any adjustments or negotiations pursuant to the preceding two sentences by any officerclause (iv), director if applicable, failing to make such Change of Recommendation would be inconsistent with the fiduciary duties of the Board (or employee the Special Committee) to the Company’s shareholders (other than the Guarantors) under applicable Legal Requirements. If the Board (or the Special Committee) makes a Change of Recommendation, and this Agreement is not otherwise terminated pursuant to Section 6.1, the Company shall nonetheless submit this Agreement to the shareholders of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of for consideration at the Company or any of its subsidiaries shall be deemed to be a breach Shareholders Meeting as contemplated by Section 4.3(c).
(d) For purposes of this Section 5.4 by the Company.Agreement:
Appears in 1 contract
No Solicitation. The Company agrees (ai) Subject to the provisions of Section 5.2(c), from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company it will negotiate exclusively with Parent and its subsidiaries authorized representatives regarding the transaction contemplated hereby and will not, nor will they authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them to, directly or indirectly, (i) solicit, initiate, encourage or induce solicit the makingsubmission of, submission entertain inquiries, proposals or announcement offers from, or enter into any agreement or negotiate with any person or entity (other than Parent and other any such actions taken in connection with the Third-Party Right) for the acquisition of any Acquisition Proposal the Company (as hereinafter defined)whether by merger, combination, sale of assets, sale of stock or otherwise) or other disposition of assets or technology other than in the ordinary course of business, and (ii) participate in any discussions or negotiations regarding, or it will not furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as transaction prohibited by this Section 4.9. The Company agrees to take the existence necessary steps to promptly inform any such third party of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained the obligations undertaken in this Section 5.4 shall prohibit 4.9 and this Agreement. The Principal Stockholders and the ----------------- Company agree to immediately inform Parent of any such inquiry from any such third party, including the material terms thereof (including without limitation, any terms regarding price) and the identity of the Person making such inquiry, and to keep the Parent informed, on a current basis, of the status and terms of any such proposals or offers. Notwithstanding the foregoing, in the event that, prior to obtaining the approval of its stockholders, the Company’s Board of Directors of receives a Superior Proposal, the Company from (i) in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Company’s Board of Directors may, if it determines in good faith, by resolution duly adopted after consultation with outside legal counsel to the Company, that such action is required in order for the Company’s Board of Directors to comply with its fiduciary duties under Applicable Law or to comply with the Third Party Right, approve or recommend such Superior Proposal and terminate this Agreement as permitted pursuant to the terms of Section 7.1(h); provided that:
(a) the Company has reasonably concluded (based onnotifies Parent in writing that it intends to take such action, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to which notice must identify the party making such Acquisition Proposalproposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to set forth the material terms of such Acquisition Proposal so proposal, and have attached to it the most current version of any such written agreement;
(b) Parent shall not have proposed, within five (5) Business Days after receipt of such notice from the Company, to amend this Agreement to provide for terms superior to those of the Superior Proposal;
(c) for a period of five (5) Business Days after receipt of Parent’s proposal to amend this Agreement, the Company shall have reasonably considered and discussed in good faith all proposals submitted by the Parent and, without limiting the foregoing, met with, and caused its legal advisors to meet with, Parent and its advisors from time to time as reasonably requested by Parent to enable reasonably consider and discuss in good faith the Parent’s proposals;
(d) the Company’s Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faithfaith determines, after consultation with its outside counsellegal advisors, that after taking into account any amendments to this Agreement proposed by the Parent as of the end of such five (5) Business Day negotiation, the Parent’s proposal is not more favorable to the stockholders of the Company as the Superior Proposal; and
(e) if the party making the Superior Proposal amends or modifies its fiduciary obligations under applicable law require it proposal on one more occassions in response to do so, (B) (x) concurrently with furnishing any such nonpublic information to, Parent amending or written questions proposing to such partyamend this Agreement pursuant to this Section 4.9, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations shall comply with the party making such Acquisition Proposal to the extent that procedures set forth in clauses (Aa) the Board through (d) of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore this Section 4.9 with respect to any Acquisition each such amended or modified Superior Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed subject to be a breach of this Section 5.4 by the Company’s termination right under Section 7.1(c).
Appears in 1 contract
Sources: Merger Agreement (American Medical Systems Holdings Inc)
No Solicitation. (a) Subject to the provisions of Section 5.2(c)The Company shall not, from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company shall cause its Subsidiaries and its subsidiaries will not, nor will they authorize or permit any of and their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them officers and directors not to, directly or indirectly, and shall direct its and their respective other Representatives not to:
(i) solicit, initiate, initiate or knowingly facilitate or encourage or induce the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry (as hereinafter definedincluding by approving any transaction, or approving any Person becoming an “interested stockholder,” for purposes of Section 203 of the DGCL), ;
(ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information regarding the Company or any of its Subsidiaries to any Person for the purpose or with respect the effect of soliciting, encouraging or facilitating, or in response to, an Acquisition Proposal or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, Inquiry;
(iii) engage in discussions or negotiations with any person Person with respect to any Acquisition Proposal, except as to the existence of these provisions, Proposal or Acquisition Inquiry;
(iv) approvewaive or release any Person from, endorse forebear in the enforcement of or recommend amend any Acquisition Proposal or (v) enter into any letter of intent or similar document standstill agreement or any contract, agreement or commitment contemplating or otherwise relating to standstill provisions of any Acquisition Transaction; other Contract (provided, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors of the Company from (i) in response shall be permitted to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposalgrant waivers of, and submitting to the party making such Acquisition Proposal written questionsnot enforce, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offerany standstill agreement, but solely to the extent that (A) the Board of Directors of the Company concludes Board has determined in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it failure to do so, take such action (A) would prohibit the counterparty from making an unsolicited Acquisition Proposal to the Company Board in compliance with this Section 6.13 and (B) would constitute a breach of its fiduciary duties to the stockholders of the Company under applicable Law); or
(xv) concurrently with furnishing resolve or agree to do any such nonpublic information toof the foregoing; provided, or written questions however, that, notwithstanding anything to such partythe contrary contained in this Agreement, the Company gives Parent and its Representatives may engage in any such discussions or negotiations and provide any such information in response to an unsolicited bona fide written notice Acquisition Proposal first made after the date hereof (that did not result from a breach of this Section 6.13(a)), if: (i) prior to providing any non-public information regarding the Company's intention Company to furnish nonpublic information, or written questions any third party in response to such party and (y) an Acquisition Proposal, the Company receives from such third party (or there is then in effect with such party) an executed confidentiality agreement containing customary limitations on Acceptable Confidentiality Agreement; and (ii) the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of Company Board (or a committee thereof) determines in good faith, after consultation with the Company’s outside legal counsel and financial advisor, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously that such Acquisition Proposal constitutes a Superior Proposal. Prior to or concurrent with furnishing providing any such nonpublic non-public information to such third party, the Company furnishes shall make such nonpublic non-public information available to Parent (to the extent such nonpublic non-public information has not been previously furnished made available by the Company to Parent or Parent’s Representatives).
(b) The Company shall, and shall cause its Subsidiaries and its and their respective officers and directors to, and shall direct its and their respective other Representatives to, (i) immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any third party relating to any Acquisition Proposal or Acquisition Inquiry, (ii) within three (3) Business Days of the date of this Agreement, request the prompt return or destruction of all confidential information previously furnished to any third party in response connection with any possible Acquisition Proposal or Acquisition Inquiry (subject to any document retention rights of such third party set forth in an applicable Contract), and (iii) terminate access to any physical or electronic data rooms relating to any possible Acquisition Proposal or Acquisition Inquiry. If the Company, any of its Subsidiaries, or any of its or their respective Representatives receives an Acquisition Proposal or an Acquisition Inquiry that would reasonably be expected to lead to an unsolicitedAcquisition Proposal, bona fide written then the Company shall promptly notify Parent in writing of such Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with or Acquisition Inquiry (which notification shall include the party identity of the Person making such Acquisition Proposal or Acquisition Inquiry the material terms and conditions thereof), and shall thereafter keep Parent reasonably informed of any material change to the extent that terms or conditions of such Acquisition Proposal or Acquisition Inquiry promptly.
(Ac) the Board of Directors of the Company concludes Nothing contained in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of this Section 6.13 or elsewhere in this Agreement shall prohibit the Company, the terms of which are at least as restrictive as Company Board (or any committee thereof) or their Representatives from: (i) taking and disclosing to the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee stockholders of the Company a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9(f) promulgated under the Exchange Act, or from issuing a customary “stop, look and listen” statement pending disclosure of its position thereunder (or any substantially similar communication), provided that any such disclosure does not contain or reflect a Change in Recommendation; or (ii) communicating with any Person (or the Representatives of such Person) that makes any Acquisition Proposal or any Acquisition Inquiry solely to the extent necessary to direct such Person to the provisions of this Section 6.13; provided, however, that the Company Board shall not make any Change in Recommendation except in accordance with Section 1.3(e).
(d) The Company agrees that in the event any of its subsidiaries Representatives, the Company’s Subsidiaries, or any investment bankerRepresentative of any such Subsidiary (acting on behalf of such Subsidiary), attorney or other advisor or representative takes any action that, if taken by the Company, would constitute a breach of this Section 6.13, the Company or any of its subsidiaries shall be deemed to be a in breach of this Section 5.4 by the CompanySection 6.13.
Appears in 1 contract
No Solicitation. (a) Subject to During the provisions of Section 5.2(c), from and after period beginning on the date of this Agreement and continuing until 12:01 a.m. (EST) on December 21, 2002 (the Effective Time or termination of this Agreement pursuant to Article VII"EXCLUSIVITY PERIOD START DATE"), the Company and its subsidiaries will not, nor will they authorize or permit any of Subsidiaries and their respective officers, directors, employees, agents, advisors, affiliates and other representatives (collectively, the "COMPANY REPRESENTATIVES") shall have the right to (i) initiate, solicit and encourage (including by way of providing access to non- public information pursuant to one or employees more Acceptable Confidentiality Agreements (as hereinafter defined)) inquiries with respect to, or the making or submission of, Company Acquisition Proposals (as defined below) and (ii) enter into and maintain or continue discussions or negotiations with any Person or group of Persons in furtherance of any such inquiries and to induce the making or submission of Company Acquisition Proposals.
(b) Subject to Section 5.2(c) and except as may relate to any Person or group of related Persons from whom the Company has received, after the date hereof and prior to the Exclusivity Period Start Date, a bona fide written indication of interest that the Board of Directors of the Company or the Special Committee reasonably believes could result in a Superior Proposal (as hereinafter defined) (and the Company shall provide notice of, including the identity of the Person or group of related Persons making such indication of interest and the material terms and conditions thereof, within 24 hours following the Exclusivity Period Start Date) (each such Person or group, an "EXCLUDED PARTY"), from the Exclusivity Period Start Date until the Effective Time or, if earlier, the termination of this Agreement in accordance with 38 Article VII, the Company shall not, and shall not direct, authorize or permit any of its Subsidiaries or any investment banker, attorney or other advisor or representative retained of the Company Representatives (and shall be responsible for non-compliance with the following provisions by any of them the foregoing) to, directly or indirectly, (iA) solicit, initiate, solicit or encourage (including by way of providing information) any prospective acquiror or induce the making, invitation or submission or announcement of any Acquisition Proposal (as hereinafter defined)inquiries, (ii) participate in any discussions proposals or negotiations regarding, offers or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries efforts or the making of any proposal attempts that constitutes constitute, or may reasonably be expected to lead to, any Company Acquisition Proposal, (iii) Proposal or engage in any discussions or negotiations with respect thereto or otherwise cooperate with or assist or participate in, or facilitate any such inquires, proposals, discussions or negotiations or (B) accept a Company Acquisition Proposal or enter into any agreement or agreement in principle (other than an Acceptable Confidentiality Agreement) providing for or relating to a Company Acquisition Proposal or enter into any agreement or agreement in principle requiring the Company to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder. Subject to Section 5.2(c) and except as may relate to any Excluded Party, on the Exclusivity Period Start Date the Company shall immediately cease and cause to be terminated any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any person parties conducted heretofore by the Company, any Subsidiary thereof or any Company Representatives with respect to any Company Acquisition Proposal, except as .
(c) Notwithstanding anything to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contrary contained in Section 5.2(b), if at any time prior to the approval of this Section 5.4 shall prohibit the ----------------- Board of Directors of Agreement by the Company from stockholders, (i) in response to an unsolicited, the Company has otherwise complied with its obligations under this Section 5.2 and the Company has received a bona fide written Company Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputationincluding any Excluded Party), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (Aii) the Board of Directors of the Company concludes or the Special Committee determines in good faith, after consultation with its independent financial advisor and outside counsel, that its fiduciary obligations under applicable law require it such Company Acquisition Proposal could reasonably be expected to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party result in a Superior Proposal and (yiii) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Companyafter consultation with its legal advisors, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes or the Special Committee determines in good faithfaith that the failure to do so would be inconsistent with its fiduciary duties under applicable Law, then (x) the Company may take any of the actions otherwise prohibited by Section 5.2(b) with respect to such third party and such Company Acquisition Proposal; PROVIDED, that the Company (A) will provide notice to Parent of the identity of the Person making such Company Acquisition Proposal and the material terms and conditions thereof prior to or promptly after (and in any event within 24 hours after) commencing any such actions, provided that Parent will hold all such information pursuant to the terms of the Confidentiality Agreement, (B) will not, and will not allow any of its Subsidiaries or any Company Representatives to, disclose any information to such third party without entering into an Acceptable Confidentiality Agreement and (C) will promptly provide to Parent any non-public information concerning the Company or its Subsidiaries provided to such other Person which was not previously provided to Parent. Nothing contained in this Section 5.2 shall prohibit the Company or the Board of Directors of the Company from taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any other disclosure required by applicable Law.
(d) The Company shall keep Parent generally informed on a prompt basis of the status of and material developments respecting any solicitations, inquiries, proposals and/or negotiations (including as to the material terms and price in respect of any Company Acquisition 39 Proposal) that are made or conducted pursuant to Section 5.2{a) or 5.2(c) no later than 24 hours after such material development, and shall provide notice to Parent of any intent to take any of the actions described in Section 7.l(f) or to terminate this Agreement pursuant to Section 7.1(g) (it being understood that the Company shall not take any of the actions described in Section 7.1(f) or terminate this Agreement in accordance with Section 7.1(g) unless and until it provides Parent not less than 72 hours notice of such action or termination, as the case may be).
(e) As used in this Agreement, "COMPANY ACQUISITION PROPOSAL" means any inquiry, proposal or offer from any Person or group of Persons relating to any direct or indirect acquisition or purchase of a business that constitutes 20% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, or 20% or more of the outstanding Company Common Stock, any tender offer or exchange offer that if consummated would result in any Person or group of Persons beneficially owning 20% or more of the outstanding Company Common Stock, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company (or any Subsidiary or Subsidiaries of the Company whose business constitutes 20% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole), other than the transactions contemplated by this Agreement.
(f) As used in this Agreement, "SUPERIOR PROPOSAL" means a Company Acquisition Proposal (but changing the references to the 20% amounts in the definition of Company Acquisition Proposal to 50%) made on terms which the Board of Directors (or the Special Committee) in good faith determines (based on such matters as it deems relevant, after consultation with its independent financial advisor and outside counsel, that its fiduciary obligations under applicable law require it to do so), (Ba) would, if consummated, result in a transaction that is more favorable to its stockholders entitled to receive the Merger Consideration hereunder (in their capacities as stockholders), from a financial point of view, than the transactions contemplated hereby, and (b) is reasonably likely to be completed.
(g) As used in this Agreement, an "ACCEPTABLE CONFIDENTIALITY AGREEMENT" shall mean a confidentiality and standstill agreement that contains provisions which are no less favorable to the Company than those contained in either (i) the Confidentiality Agreement or (ii) a proposed amendment and/or restatement of the Confidentiality Agreement that is signed by the Company and delivered to WCAS so long as such amendment and/or restatement does not (x) concurrently with entering into negotiations with such party, contain or amend any provisions which are less favorable to WCAS than the Company gives Parent written notice Confidentiality Agreement in effect as of the Company's intention to enter into negotiations with such party and date hereof or (y) amend or modify (including by adding any provision that limits or conflicts with) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf provisions of the Company, fourth paragraph or the terms eleventh paragraph of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation Agreement in effect as of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Companydate hereof.
Appears in 1 contract
Sources: Merger Agreement (Diagnostic Pathology Management Services Inc)
No Solicitation. (a) Subject The Company agrees that, prior to the provisions of Section 5.2(c), from and after the date of this Agreement until the Effective Time or termination of or, in the event that this Agreement pursuant to Article VIIis terminated, for 90 days following the Company and its subsidiaries will effective date of such termination, it shall not, nor will they and shall not authorize or permit any of their respective its Subsidiaries or any of its or its Subsidiaries' directors, officers, directorsemployees, affiliates agents or employees or any investment banker, attorney or other advisor or representative retained by any of them torepresentatives, directly or indirectly, (i) to solicit, initiate, initiate or encourage (including by way of furnishing or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any person any disclosing non-public information with respect to, or take any other action to facilitate information) any inquiries or the making of any proposal that constitutes with respect to any merger, consolidation or may reasonably be expected to lead toother business combination involving the Company or the acquisition of all or substantially all of the assets or capital stock of the Company (an "Acquisition Transaction") or negotiate, any Acquisition Proposal, (iii) explore or otherwise engage in substantive discussions with any person (other than Buyer or its directors, officers, employees, agents and representatives), or enter into any agreement, with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse Transaction or recommend any Acquisition Proposal or (v) enter into any letter of intent agreement, arrangement or similar document understanding requiring it to abandon, terminate or fail to consummate the Merger or any contractother transactions contemplated by this Agreement; provided that the Company may, agreement or commitment contemplating or otherwise relating prior to any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors date of the Company from (i) Stockholders Meeting, in response to an unsolicited, a bona fide unsolicited written proposal with respect to an Acquisition Proposal Transaction from a reputable and responsible credible third party for a Company Acquisition that is not subject to any material financing uncertainties and that the Board of Directors determines in the exercise of its fiduciary duties is more favorable to the stockholders of the Company has reasonably concluded (based onthan the Merger, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic furnish or disclose non-public information to, and negotiate, explore or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic informationotherwise engage in substantive discussions with, or written questions to enter into such an agreement with, such third party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal provided that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) shall concurrently with entering into negotiations with such partyagreement pay or cause to be paid to Buyer the amount specified in Section 9.04(b) hereof).
(b) After the date hereof, the Company gives Parent written notice shall immediately advise Buyer in writing of the Company's receipt, directly or indirectly, of any inquiries or proposals, and of its intention to enter into negotiations with any agreement, relating to an Acquisition Transaction and any actions taken pursuant to Section 5.04(a) hereof and furnish to Buyer either a copy of such party and (y) the Company receives from proposal or a written summary of such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Companyproposal.
Appears in 1 contract
No Solicitation. (a) Subject to the provisions of Section 5.2(c), from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the The Company and its subsidiaries will not, nor and will they authorize or permit any of their respective use --------------- its best efforts to ensure that its officers, directors, affiliates or employees or any employees, investment bankerbankers, attorney or attorneys, accountants and other advisor or representative retained by any of them toagents do not, directly or indirectly, : (i) solicit, initiate, encourage solicit or induce encourage, or take any action to facilitate the makingmaking of, submission any offer or announcement of proposal which constitutes or is reasonably likely to lead to any Acquisition Proposal (as hereinafter defined)Takeover Proposal, (ii) participate in enter into any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person agreement with respect to any Acquisition Takeover Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (viii) enter into in the event of an unsolicited written Takeover Proposal for the Company engage in negotiations or discussions with, or provide any letter information or data to, any Person (other than Parent, any of intent its affiliates or similar document or any contract, agreement or commitment contemplating or otherwise representatives and except for information which has been previously publicly disseminated by the Company) relating to any Acquisition TransactionTakeover Proposal; provided, provided -------- however, that nothing contained in this Section 5.4 5.3 or any other provision ------- hereof shall prohibit the ----------------- Company or the Company's Board of Directors from (i) taking and disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act or (ii) making such disclosure to the Company's stockholders as, the Board of Directors may determine in good faith is required under applicable law after receipt of a written opinion from outside legal counsel to the Company that such disclosure is required under applicable law and that the failure to make such disclosure would likely cause the Board of Directors to violate its fiduciary duties to the Company's stockholders under applicable law.
(b) Notwithstanding the foregoing, prior to the acceptance of Shares pursuant to the Offer, the Company may furnish information concerning its business, properties or assets to any Person pursuant to terms substantially similar to those contained in the Confidentiality Agreement, dated July 1, 1997 entered into be- tween American Industrial Partners and the Company (the "Confidentiality --------------- Agreement") and may negotiate and participate in discussions and negotiations --------- with such Person concerning a Takeover Proposal if (x) such entity or group has on an unsolicited basis submitted a bona fide written proposal to the Company relating to any such transaction which the Board of Directors determines in good faith, after receiving advice from Jefferies & Co. or another nationally recognized investment banking firm, represents a superior transaction to the Offer and the Merger and (y) in the opinion of the Board of Directors of the Company, only after receipt of a written opinion from outside legal counsel to the Company from to such effect, the failure to provide such information or access or to engage in such discussions or negotiations would likely cause the Board of Directors to violate its fiduciary duties to the Company's stockholders under, or otherwise violate or subject the Board of Directors to liability under applicable law (ia Takeover Proposal which satisfies clauses (x) and (y) being referred to herein as a "Superior Proposal"). The Company shall promptly, and ----------------- in response any event within one business day following any determination by the Board of Directors that a Takeover Proposal is a Superior Proposal, notify Parent of such determination of the same and prior to providing any such party with any material non-public information. The Company shall promptly provide to Parent any material non-public information regarding the Company provided to any other party which was not previously provided to Parent. At any time after two business days following notification to Parent of the Company's intent to do so (which notification shall include the identity of the bidder and the material terms and conditions of the proposal) and if the Company has otherwise complied with the terms of this Section 5.3(b), the Board of Directors may terminate this Agreement pursuant to clause (ii) of Section 8.1(f) and enter into an unsolicitedagreement with respect to a Superior Proposal, bona fide written Acquisition Proposal from a reputable provided that the Company shall, -------- concurrently with entering into such agreement, pay or cause to be paid to Parent the Termination Fee (as defined in Section 8.2(b) hereof), plus any amount payable at the time for reimbursement of expenses pursuant to Section 8.2(b) hereof.
(c) Except as set forth in Sections 5.3(b) and responsible third party for a Company Acquisition that 6.1, neither the Board of Directors of the Company has reasonably concluded nor any committee thereof shall (based oni) withdraw or modify, among other thingsor propose to withdraw or modify, in a manner adverse to Parent or the Purchaser, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making approval or recommendation by such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors or any such committee of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to this Agreement or the extent that (A) the Board of Directors of the Company concludes in good faithMerger, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response approve or recommend or propose to an unsolicitedapprove or recommend, bona fide written Acquisition any Takeover Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that or (Aiii) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality any agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Takeover Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Company.
Appears in 1 contract
No Solicitation. (ai) Subject to the provisions of Except as expressly permitted by this Section 5.2(c), from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII6.4, the Company and its subsidiaries will agrees that it shall not, nor will they authorize or permit any of and shall cause its Subsidiaries not to, and shall direct its and their respective officers, directors, affiliates employees, consultants, agents, financial advisors, attorneys, accountants, other advisors and other representatives (collectively, “Representatives”) not to (and shall not authorize or employees give permission to its or any investment banker, attorney or other advisor or representative retained by any of them their respective Representatives to), directly or indirectly, :
(iA) solicit, initiateassist, seek, initiate or knowingly facilitate or encourage or induce promote (including by way of discussion, negotiation, furnishing information or access to the makingCompany or any of its Subsidiaries, submission or announcement entering into any agreement, arrangement or understanding) any proposal, offer, inquiry or indication of interest that constitutes, or may reasonably be expected to constitute or lead to, any Acquisition Proposal Proposal;
(as hereinafter defined)B) engage in, (ii) continue or otherwise participate in any discussions or negotiations regardingregarding any proposal, offer, inquiry or furnish to any person any non-public information with respect toindication of interest that constitutes, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to constitute or lead to, any Acquisition Proposal;
(C) accept, approve, endorse or recommend, or publicly propose to accept, approve, endorse or recommend, or take no position or remain neutral with respect to, any Acquisition Proposal (iii) engage in discussions with any person it being understood that publicly taking no position or a neutral position with respect to any a publicly announced, or otherwise publicly disclosed, Acquisition Proposal for a period of no more than five Business Days following the public announcement or public disclosure of such Acquisition Proposal, except as or, in the event the Company Meeting is scheduled to occur within such five-Business Day period, prior to the existence third Business Day prior to the date of these provisionsthe Company Meeting (or, if the public announcement were made less than three Business Days prior to the Company Meeting, prior to the second Business Day before the Company Meeting) will not be considered to be in violation of this Section 6.4(a)(i)(C), provided that the Company Board of Directors has rejected such Acquisition Proposal and affirmed the Company Recommendation by press release before the end of such period);
(ivD) accept, approve, endorse or recommend, or publicly propose to accept, approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent intent, memorandum of understanding, acquisition agreement, agreement in principle or similar document agreement with any Person in respect of an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted by and in accordance with Section 6.4(d)); or
(E) waive or release any contractother Person from, agreement forebear in the enforcement of, or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors of the Company from amend (i) in response any standstill agreement (or any standstill provisions of any other contract or agreement with respect to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among Common Shares or other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice Equity Interests of the Company's intention ), confidentiality, non-disclosure or similar agreement to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries Subsidiaries is or may hereafter become a party in accordance with Section 6.4(d) or (ii) the Rights Agreement. The Company shall take all necessary action to enforce, any standstill agreement (or any investment banker, attorney standstill provisions of any other contract or agreement with respect to Company Common Shares or other advisor Equity Interests of the Company), confidentiality, non-disclosure or representative of similar agreement to which the Company or any of its subsidiaries Subsidiaries is or may hereafter become a party in accordance with Section 6.4(d). For greater certainty, the automatic termination or automatic release, in each case pursuant to the terms thereof, of any standstill restrictions of any such agreements as a result of the entering into and announcement of this Agreement shall be deemed to not be a breach violation of this Section 5.4 by 6.4(a)(i)(E).
(ii) The Company shall, and shall cause its Subsidiaries and their respective Representatives to, immediately cease and cause to be terminated all solicitations, discussions, negotiations or activities with any Person that may be ongoing with respect to any proposal, offer, inquiry or indication of interest that constitutes, or may reasonably be expected to constitute or lead to, an Acquisition Proposal and, in connection therewith, the CompanyCompany shall (A) immediately cease to provide any other Person with access to and disclosure of any non-public information concerning itself or any of its Subsidiaries, including any data room and any properties, facilities, books and records of such Party or any of its Subsidiaries, and (B) promptly deliver a written notice to each such Person to the effect that the Company is ending all discussions and negotiations with such Person with respect to such proposal, offer, inquiry or indication of interest, effective as of the date hereof, which notice shall also request such Person to promptly return or destroy all confidential information concerning such Party and its Subsidiaries and destroy all material including or incorporating or otherwise reflecting such confidential information (and such Party shall use all commercially reasonable efforts to ensure that such request is fully complied with).
Appears in 1 contract
Sources: Arrangement Agreement and Plan of Merger (Primo Water Corp /CN/)
No Solicitation. (a) Subject to the provisions of Section 5.2(c5.3(b), from and after the date of this Agreement hereof until the Effective Time or termination of this Agreement pursuant to Article VIITime, the Company shall, and shall cause its subsidiaries will not, nor will they authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them Subsidiaries and Representatives to, directly or indirectly, (ix) solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined), (ii) participate in immediately cease and cause to be terminated any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person Third Party conducted prior to the date hereof with respect to any Acquisition Proposal, except (y) deliver a written notice to any such Third Party explicitly stating that the Company is terminating all discussions and negotiations with such Third Party with respect to any Acquisition Proposal, and requesting that such Third Party promptly return or destroy all confidential or proprietary information concerning the Company and its Subsidiaries and (z) promptly terminate access to any due diligence or electronic or physical data room with respect to any Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Effective Time, or, if earlier, the termination of this Agreement in accordance with ARTICLE VII, the Company shall not, and shall cause its Subsidiaries and its and their respective Representatives not to, directly or indirectly, initiate, solicit, knowingly facilitate or knowingly encourage any Acquisition Proposal or the making or submission thereof, (y) engage in, continue or otherwise participate in any discussions or negotiations with a Third Party regarding any Acquisition Proposal (other than to inform any Third Party of the existence of these provisionsthe provisions contained in this Section 5.3) or (z) furnish or provide any nonpublic information in connection with, any Acquisition Proposal. Except as expressly permitted by this Section 5.3, from and after the date hereof until the Effective Time, or, if earlier, the termination of this Agreement in accordance with ARTICLE VII, neither the Company Board (acting upon the recommendation of the Transaction Committee, or otherwise) nor the Transaction Committee or any other committee thereof shall (i) adopt, approve or recommend, or publicly propose to adopt, approve or recommend, any Acquisition Proposal, (ii) withdraw, change, qualify, withhold or modify, or publicly propose to withdraw, change, qualify, withhold or modify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (iii) fail to include the Company Board Recommendation in the Proxy Statement, (iv) approve, endorse or recommend any in the event a tender offer that constitutes an Acquisition Proposal subject to Regulation 14D under the Exchange Act is commenced, fail to recommend against such Acquisition Proposal in any solicitation or recommendation statement made on Schedule 14D-9 within ten (10) Business Days of such commencement, (v) approve, authorize or cause or permit the Company or any of its Subsidiaries to enter into any merger agreement, acquisition agreement, letter of intent intent, memorandum of understanding or other similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; providedProposal (a "Company Acquisition Agreement"), however(vi) fail to publicly affirm the Company Board Recommendation within five (5) Business Days following receipt of a written request to do so from Parent or (vii) resolve or agree to do any of the foregoing (any action set forth in the foregoing clauses (i) through (iv), that nothing (vi) and (vii) of this sentence, a "Change of Board Recommendation").
(b) Notwithstanding anything to the contrary contained in this Section 5.4 shall prohibit 5.3(a), if at any time following the ----------------- Board of Directors date hereof and prior to the receipt of the Company from (i) in response to an unsolicited, Stockholder Approval the Company has received a bona fide written Acquisition Proposal from a reputable and responsible third party for Third Party that did not result from a Company Acquisition that the Board breach of Directors of this Section 5.3, (i) the Company has reasonably concluded and its Representatives may contact the Person proposing such Acquisition Proposal or the Representatives of such Person solely to clarify the terms and conditions thereof and (ii) if the Transaction Committee (or a duly authorized committee thereof) determines in good faith, after consultation with its financial advisors and outside legal counsel, based onon information then available, among other thingsthat such Acquisition Proposal constitutes, the advice of a financial advisor of nationally recognized reputation), or is reasonably expected likely to lead to result in, a Superior OfferProposal and that failure to take such actions would be reasonably likely to breach the directors' fiduciary duties under applicable Law, furnishing nonpublic then the Company may (A) furnish information with respect to the party Company and its Subsidiaries to the Third Party making such Acquisition Proposal, its Representatives and submitting potential sources of financing pursuant to (but only pursuant to) one or more Acceptable Confidentiality Agreements and (B) participate in discussions or negotiations with the party Third Party making such Acquisition Proposal written questionsregarding such Acquisition Proposal; provided, however, that any non-public information concerning the sole purpose of which is Company or its Subsidiaries provided or made available to elicit clarifications as any Third Party shall, to the material terms extent not previously provided or made available to Parent or Merger Sub, be provided or made available to Parent or Merger Sub as promptly as reasonably practicable (and in no event later than twenty-four (24) hours) after it is provided or made available to such Third Party.
(c) The Company shall promptly (and in any event within twenty-four (24) hours) notify Parent orally and in writing of the receipt of any Acquisition Proposal, which notice shall identify the Third Party making such Acquisition Proposal and include a copy of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe and any equity or debt financing materials related thereto (or, where such Acquisition Proposal as was not submitted in writing, a Superior Offerreasonably detailed written description of such Acquisition Proposal including its material terms and conditions). Without limiting the foregoing, to the extent that Company shall keep Parent promptly informed (Aand in any event within twenty-four (24) the Board of Directors hours) in all material respects of the status of, and any material communications relating to, such Acquisition Proposal (including any change in the price or other material terms thereof). The Company concludes shall not terminate, amend, modify, waive or fail to enforce any provision of any "standstill" or similar obligation of any Person unless the Transaction Committee determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would be reasonably expected to breach its fiduciary obligations duties under applicable law require Law; provided, that the Company promptly (and in any event within twenty-four (24) hours) advises Parent that it is taking such action and the identity of the Persons with respect to do sowhich it is taking such action. The Company shall not enter into any agreement with any Third Party relating to an Acquisition Proposal which has the effect of prohibiting the Company or its Representatives from communicating with, (B) (x) concurrently with furnishing or providing any such nonpublic information or materials to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic informationin accordance with, or written questions otherwise complying with this Section 5.3(c).
(d) Notwithstanding anything to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contrary contained in the Confidentiality AgreementSection 5.3(a), and (C) contemporaneously with furnishing any such nonpublic information to such partyif, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, a bona fide written Acquisition Proposal made after the date of this Agreement and not withdrawn that did not result from a breach of this Section 5.3, the Company Board (acting upon the recommendation of the Transaction Committee) determines in good faith, after consultation with its financial advisors and outside legal counsel, constitutes a Superior OfferProposal, engaging in negotiations with the party making such Acquisition Proposal Company Board may at any time prior to the extent that receipt of the Company Stockholder Approval, (A) effect a Change of Board Recommendation with respect to such Superior Proposal or (B) terminate this Agreement pursuant to Section 7.1(e) in order to enter into a definitive written agreement with respect to such Superior Proposal, in either case subject to the requirements of this Section 5.3(d). The Company shall not be entitled to effect a Change of Board of Directors Recommendation pursuant to this Section 5.3(d) or terminate this Agreement pursuant to Section 7.1(e) unless:
(i) the Company Board, acting upon the recommendation of the Company concludes Transaction Committee, shall have determined in good faith, after consultation with its outside legal counsel, that its the failure to make such a Change of Board Recommendation or to terminate this Agreement pursuant to Section 7.1(e) in response to the receipt of such Superior Proposal would reasonably be expected to be a breach of the directors' fiduciary obligations duties under applicable law require it to do so, Law;
(Bii) (x) concurrently with entering into negotiations with such party, the Company gives shall have provided to Parent at least four (4) Business Days' prior written notice (the "Notice Period") of the Company's intention to enter into take such actions, which notice shall specify the basis for such Change of Board Recommendation or decision to terminate this Agreement pursuant to Section 7.1(e), the identity of the Third Party making such Superior Proposal, the material terms and conditions of such Superior Proposal, and shall include a copy of the applicable Company Acquisition Agreement and any other material documents with respect thereto,
(iii) during the Notice Period, if requested by Parent, the Company shall have, and shall have caused its Representatives to have, engaged in good faith negotiations with Parent and its Representatives regarding any amendments or modifications to this Agreement proposed by Parent and intended to cause the relevant Acquisition Proposal to no longer constitute a Superior Proposal; and
(iv) at the end of such party and (y) Notice Period, the Company receives from such party an executed confidentiality agreement containing customary limitations Board, acting upon the recommendation of the Transaction Committee, shall have considered in good faith any proposed amendments or modifications to this Agreement (including a change to the price terms hereof) and the other agreements contemplated hereby that may be offered by Parent (the "Proposed Changed Terms") no later than 11:59 a.m., New York City time, on the use last day of the Notice Period and disclosure shall have determined in good faith, after consultation with its financial advisors and outside legal counsel, that the Superior Proposal would continue to constitute a Superior Proposal if such Proposed Changed Terms were to be given effect and that failure to make a Change of all nonpublic written and oral information furnished Board Recommendation with respect to such party on behalf Superior Proposal would reasonably be expected to breach the directors' fiduciary duties under applicable Law. In the event of any change to the Company, price terms or any other material revision or amendment to the terms of such Superior Proposal, the Company shall be required to deliver a new written notice to Parent and to again comply with the requirements of this Section 5.3(d) (which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore shall apply mutatis mutandis) with respect to such new written notice, except that in the case of such a new written notice, the Notice Period shall be three (3) Business Days.
(e) Nothing contained in this Section 5.3 shall prohibit the Company Board (acting upon the recommendation of the Transaction Committee) from (i) disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a), Rule 14d-9 and Item 1012(a) of Regulation M-A promulgated under the Exchange Act; or (ii) making any Acquisition Proposaldisclosure to the stockholders of the Company if the Company Board (acting upon a recommendation of the Transaction Committee) determines in good faith, after consultation with outside legal counsel, that the failure to make such disclosure would be inconsistent with its fiduciary duties or violate applicable Law, provided that upon the written request by Parent following any disclosure specified in this Section 5.3(e), the Company Board and the Transaction Committee shall publicly reaffirm the Company Board Recommendation within three Business Days following receipt of such request and a failure to do so shall be deemed to be a Change of Board Recommendation. Without limiting The issuance by the foregoingCompany or the Company Board of a "stop, it is understood look and listen" statement pending disclosure of its position, as contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, shall not constitute a Change of Board Recommendation.
(f) The Company acknowledges and agrees that any violation of the restrictions set forth in the preceding two sentences this Section 5.3 by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries Representatives shall be deemed to be a breach of this Section 5.4 5.3 by the Company.
(g) For purposes of this Agreement:
Appears in 1 contract
No Solicitation. (a) Subject to the provisions of Section 5.2(c), from From and after the date of this Agreement until the earlier of the Effective Time or termination of this Agreement pursuant to Article VIIits terms, the Company Seller and its subsidiaries will Subsidiaries shall not, nor will they authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them to, directly or indirectly, through any officer, director, employee, financial advisor, representative or agent (i) solicit, initiate, or encourage or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal proposals that constitutes constitute, or may could reasonably be expected to lead to, a proposal or offer for a merger, consolidation, business combination, tender offer, sale of substantial assets, sale of shares of capital stock (excluding sales pursuant to existing Seller Stock Plans or pursuant to the Seller Warrants) or similar transaction involving Seller or any 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) engage in negotiations or discussions concerning, or provide any non-public information to any person or entity relating to, any Acquisition Proposal, or (iii) engage in discussions with any person with respect agree to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition TransactionProposal; provided, however, that that, if Seller has not breached this Section 6.01, nothing contained in this Section 5.4 Agreement shall prohibit the ----------------- prevent Seller or its Board of Directors of the Company from Directors, from:
(iA) furnishing non-public information to, or entering into discussions or negotiations with, any person or entity in response to connection with an unsolicited, unsolicited bona fide written Acquisition Proposal from a reputable and responsible third party for a Company by such person or entity or agreeing to (with the terms of any such agreement being subject to termination of this Agreement in accordance with Article VIII) or recommending an unsolicited bona fide written Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information Proposal to the party making such Acquisition Proposalstockholders of Seller, if and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, only to the extent that that
(A1) the Board of Directors of the Company concludes Seller believes in good faith, faith (after consultation with its financial advisor) that such Acquisition Proposal is reasonably capable of being completed on the terms proposed and would, if consummated, result in a transaction more favorable than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being referred to in this Agreement as a "Superior Proposal") and Seller's Board of Directors determines in good faith after consultation with outside counsel, legal counsel that such action is necessary for such Board of Directors to comply with its fiduciary obligations duties to stockholders under applicable law require it law,
(2) prior to do so, (B) (x) concurrently with furnishing any such nonpublic non-public information to, or written questions to entering into discussions or negotiations with, such partyperson or entity, the Company gives Parent written notice such Board of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company Directors receives from such party person or entity an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished with terms no more favorable to such party on behalf of the Company, the terms of which are at least as restrictive as the terms than those contained in the Confidentiality Agreement, and and
(C3) contemporaneously with furnishing any such nonpublic information prior to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes recommending a Superior OfferProposal, engaging in negotiations Seller shall provide Buyer with the party making such Acquisition Proposal to the extent that (A) the Board at least five business days' prior notice of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it proposal to do so, during which time Buyer may make, and in such event Seller shall consider, a counterproposal to such Superior Proposal, and, subject to the fiduciary duties of Seller's Board of Directors, Seller shall itself and shall cause its financial and legal advisors to negotiate on its behalf with Buyer with respect to the terms and conditions of such counterproposal for a reasonable period of time given the terms and conditions of such counterproposal and such Superior Proposal; or
(B) complying with Rule 14d-9 and 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal.
(xb) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries Seller will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore of the nature described in Section 6.01(a) and will use commercially reasonable efforts to obtain the return of any confidential information furnished to any such parties.
(c) Seller shall notify Buyer promptly, but in any event no more than 24 hours, after receipt by Seller (or its advisors) of any Acquisition Proposal or any request for non-public information in connection with an Acquisition Proposal or for access to the properties, books or records of Seller by any person or entity that informs Seller that it is considering making, or has made, an Acquisition Proposal. Such notice shall be made in writing and shall indicate in reasonable detail the identity of the offeror and the terms and conditions of such proposal, inquiry or contact. Seller shall continue to keep Buyer informed, on a current basis, of all material developments with respect to the status of any such discussions or negotiations and the terms being discussed or negotiated.
(d) Nothing in this Section 6.01 shall (i) permit Seller to terminate this Agreement (except as specifically provided in Section 8.01 hereof), (ii) permit Seller to enter into any agreement with respect to an Acquisition Proposal. Without limiting Proposal during the foregoingterm of this Agreement (it being agreed that during the term of this Agreement, it is understood Seller shall not enter into any agreement with any person that provides for, or in any violation way facilitates, an Acquisition Proposal (other than a confidentiality agreement of the restrictions set forth type referred to in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Company.6.01(a) above)) or
Appears in 1 contract
Sources: Quarterly Report
No Solicitation. (a) Subject to the provisions of Section 5.2(c)The Company shall not directly or indirectly, from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company and its subsidiaries will not, nor will they shall not authorize or permit any of their respective officers, directors, affiliates or employees the other Acquired Corporations or any investment banker, attorney or other advisor or representative retained by Representative of any of them to, the Acquired Corporations directly or indirectlyindirectly to, (i) solicit, initiate, encourage encourage, induce or induce facilitate the making, submission or announcement of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may could reasonably be expected to lead toto an Acquisition Proposal, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could lead to an Acquisition Proposal, (iii) engage in discussions or negotiations with any person Person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained this Section 4.3 shall not be deemed to prevent the Company or its board of directors from complying with its legal obligations under Rules 14d-9 and 14c-2 under the Exchange Act with regard to an Acquisition Proposal (it being understood that such compliance may constitute a Triggering Event under certain circumstances); and provided, further, that prior to the adoption of this Agreement by the Required Company Stockholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have breached or taken any action inconsistent with any of the provisions set forth in this Section 5.4 shall prohibit the ----------------- Board of Directors of the Company from 4.3, (i) in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A2) the Board board of Directors directors of the Company concludes in good faith, after consultation having consulted 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 stockholders under applicable law require it to do solaw, (B3) (x) concurrently with at least two business days prior to furnishing any such nonpublic information to, or written questions to entering into discussions with, such partyPerson, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic informationinformation to, or written questions to enter into discussions with, such party Person, and (y) the Company receives from such party Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party Person by or on behalf of the Company, the terms of which are and (4) at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with two business days prior to furnishing any such nonpublic information to such partyPerson, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal). Without limiting the generality of the foregoing, it is understood the Company acknowledges and agrees that any violation action inconsistent with any of the restrictions provisions set forth in the preceding two sentences sentence by any officer, director or employee Representative of any of the Company Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of its subsidiaries or any investment bankerthe Acquired Corporations, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be constitute a breach of this Section 5.4 4.3 by the Company.
(b) The Company shall promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal or any request for nonpublic 34 40 information) advise Parent orally and in writing of any Acquisition Proposal, any inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal or any request for nonpublic information relating to any of the Acquired Corporations (including 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 shall keep Parent 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 shall immediately cease and cause to be terminated any existing discussions with any Person that relate to any Acquisition Proposal.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Ashford Com Inc)
No Solicitation. (a) Subject to Executive hereby agrees and covenants that during the provisions of Section 5.2(c), from and after the date term of this Agreement until the Effective Time or termination Agreement, and for a period of two (2) years thereafter so long as ICG is not in material breach of this Agreement pursuant to Article VIIAgreement, the Company and its subsidiaries will he shall not, nor will they authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them to, directly or indirectly, on his own behalf or with others (A) induce or attempt to induce any ICG employee who is a direct report to Executive, any ICG Senior Vice President, or CEO or who is a president, mine superintendent or maintenance superintendent or an equivalent position of any subsidiary or operating unit of ICG ("Protected Employee") to leave the employ of ICG, or in any way interfere with the relationship between ICG and any Protected Employee except that it is specifically agreed by Executive and ICG that this Section 11.2 is not violated by any response by a Protected Employee to a publicly announced job opening with Executive or his subsequent employer whether such announcement appears in newspapers, trade publications, web sites or similar public media; (B) induce or attempt to induce any referral source, customer or other business relation of ICG not to do business with ICG, or to cease doing business with ICG; or (C) solicit, divert or actively take away, or attempt to solicit, divert or take away, for purposes of conducting a business substantially similar to the business of ICG, any individual, corporation, partnership or other association or entity who as of the Termination Date, both (i) solicithad a business relationship with ICG or, initiateto Executive's knowledge, encourage was during the ninety (90) day period preceding the Termination Date solicited in writing by ICG for business (whether or induce the makingnot he, submission she or announcement of any Acquisition Proposal (as hereinafter defined), it became an actual customer) and (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, was personally contacted by Executive during such ninety (iii90) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transactionday period; provided, however, that nothing contained in the foregoing provisions of this Section 5.4 11.2 shall not prohibit the ----------------- Board of Directors of the Company Executive from (i) participating in any response to an unsolicitedopen bidding or quote request of any customer of ICG, bona fide written Acquisition Proposal or prohibit Executive from a reputable any solicitation that does not, directly or indirectly, divert business from ICG; and, provided further, that Executive and responsible third party any subsequent employer may in the ordinary course of business compete with ICG for a Company Acquisition customers, properties or otherwise, without violating this Section 11.2, provided that the Board of Directors of the Company Executive shall not attempt to induce any entity with which ICG has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected any existing business relationship to lead to a Superior Offer, furnishing nonpublic information terminate that business relationship prior to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose termination of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent existing contracts or orders with that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Companyentity.
Appears in 1 contract
Sources: Employment Agreement (International Coal Group, Inc.)
No Solicitation. (a) Subject Notwithstanding any other provision of this Agreement to the provisions of Section 5.2(c)contrary, from and the date of this Agreement until 11:59 p.m. New York City time on the date which is sixty (60) days after the date of this Agreement until (the Effective Time or termination of this Agreement pursuant to Article VII"Go-Shop Period End Date"), the Company and its subsidiaries will not, nor will they authorize or permit any of Subsidiaries and their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any Representatives shall have the right (acting under the direction of them to, the Special Committee) to directly or indirectly, indirectly (i) solicit, initiate, solicit and encourage or induce the makingAlternative Transaction Proposals, submission or announcement including by way of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish public disclosure and by way of providing access to any person any non-public information to any Person (each, a "Solicited Person") pursuant to (but only pursuant to) one or more Acceptable Confidentiality Agreements; provided, that the Company shall promptly provide to Parent any material non-public information concerning the Company or its Subsidiaries that it has provided to any Solicited Person which was not previously provided to Parent; and (ii) enter into and maintain discussions or negotiations with respect toto Alternative Transaction Proposals or otherwise cooperate with, assist or participate in, facilitate, or take any other action to facilitate in connection with any inquiries such inquiries, proposals, discussions or negotiations. Within forty-eight (48) hours following the making Go-Shop Period End Date, the Company shall notify Parent of the material terms and conditions of the Alternative Transaction Proposals (including any proposal amendments or modifications thereof) received from any Excluded Party and the identity thereof. The Company shall immediately cease any discussions with any Person (other than Parent and any Excluded Party) that constitutes are ongoing as of the Go-Shop Period End Date and that relate, or may reasonably be expected expected, to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any an Alternative Acquisition Proposal, except as otherwise expressly provided in Sections 6.7(b) and 6.7(c) . As used in this Agreement, the term "Acceptable Confidentiality Agreement" means a confidentiality and standstill agreement that contains provisions that are no less favorable in the aggregate to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors of the Company from (i) in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms than those contained in the Confidentiality Agreement, Agreement and (C) contemporaneously with furnishing any such nonpublic information to such party, shall not prohibit the Company furnishes such nonpublic from providing information to Parent (to the extent such nonpublic information has not been previously furnished by which the Company is required to Parentprovide pursuant to Sections 6.7(a) and (ii6.7(d) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Company.
Appears in 1 contract
Sources: Agreement and Plan of Merger (China Security & Surveillance Technology, Inc.)
No Solicitation. (a) Subject The Company shall immediately cease and cause to the provisions of be terminated all existing discussions or negotiations with any other parties that may be ongoing with respect to an Acquisition Proposal. Except as permitted by this Section 5.2(c)6.3, from and after the date of this Agreement until the earlier of the Effective Time or the date of termination of this Agreement pursuant to Article VIIin accordance with Section 8.1, the Company shall not, and shall cause each of its Subsidiaries and its subsidiaries will not, nor will they authorize or permit any of and their respective officers, directors, affiliates or employees or any and agents not to, and shall direct each of its investment bankerbankers, attorney or financial advisors, attorneys, accountants and other advisor or representative retained by any of them representatives (collectively, “Representatives”) not to, directly or indirectly, (i) solicit, initiate, knowingly encourage or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to knowingly facilitate any inquiries or the making of any offer or proposal that constitutes constitutes, or may could reasonably be expected to lead to, any Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or its Subsidiaries to any Person in connection with or in response to an Acquisition Proposal, other than informing such Person of the existence of this Section 6.3, or (iii) engage in, continue or otherwise participate in, any discussions or negotiations regarding, or furnish to any other Person any information in discussions connection with any person with respect to or for the purpose of soliciting, initiating, knowingly encouraging or knowingly facilitating, any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in upon receipt of a bona fide, unsolicited written Acquisition Proposal from any Person that did not result from a breach of this Section 5.4 shall prohibit 6.3, (x) the ----------------- Company and its Representatives may contact the Person making such Acquisition Proposal and its Representatives to ascertain facts or clarify terms and conditions for the sole purpose of the Board of Directors of the Company from (i) in response to an unsolicited, bona fide written or any committee thereof informing itself about the Acquisition Proposal from a reputable and responsible third party for a the Person that made it and (y) if, prior to obtaining the Company Stockholder Approval, but not after, following the receipt of an Acquisition Proposal that the Board of Directors of the Company has determines in good faith, after consultation with its outside financial advisors and outside legal counsel, constitutes, or could reasonably concluded be expected to result in, a Superior Proposal, and that the failure to take the actions contemplated by this clause (based on, among other thingsy) would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law, the advice of a financial advisor of nationally recognized reputation)Company and the Company Representatives may, is reasonably expected in response to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting subject to compliance with Section 6.3(d), (A) furnish information with respect to the party Company to the Person making such Acquisition Proposal written questions, and its Representatives and financing sources pursuant to a confidentiality agreement that contains provisions no less favorable in the sole purpose of which is to elicit clarifications as aggregate to the material terms of Company than those contained in the Confidentiality Agreement (it being understood that such confidentiality agreement need not contain any standstill or similar obligation that would prohibit or restrain such Person from making, or amending or revising, an Acquisition Proposal); provided that the Company concurrently furnishes Parent with all such nonpublic information delivered to such Person, to the extent not previously made available to Parent; and provided further, that if the Person making such Acquisition Proposal so is a known competitor of the Company, the Company shall not provide any commercially sensitive non-public information to such Person in connection with any actions permitted by this Section 6.3 other than in accordance with customary “clean room” or other similar procedures designed to limit any adverse effect on the Company of the sharing of such information, and (B) engage in discussions or negotiations with such Person regarding such Acquisition Proposal (including solicitation of revised or amended Acquisition Proposals). The Company shall, and shall cause its Affiliates to, promptly request any Person that has executed a confidentiality or non-disclosure agreement in connection with any actual or potential Acquisition Proposal to return or destroy all confidential information in the possession of such Person or its Representatives. The Company agrees that any violation of the restrictions set forth in this Section 6.3 by any of its Representatives or any of its Affiliates shall be deemed to be a breach of this Section 6.3 by the Company.
(b) Except as to enable expressly permitted by Section 6.3(c), the Board of Directors of the Company (and each committee thereof) shall not (i) (A) fail to include the Company Board Recommendation in the Proxy Statement, (B) change, qualify, withhold, withdraw or modify, or authorize or publicly propose to change, qualify, withhold, withdraw or modify, in a manner adverse to Parent, the Company Board Recommendation, (C) adopt, approve or recommend to stockholders of the Company, or resolve to or publicly propose or announce its intention to adopt, approve or recommend to stockholders of the Company, an Acquisition Proposal, (D) fail to publicly reaffirm the Company Board Recommendation within ten (10) Business Days of the occurrence of a material event or development and after Parent so requests in writing (or if the Company Stockholders Meeting is scheduled to be held within ten (10) Business Days, then within one Business Day after Parent so requests) or (E) take or fail to take any formal action or make or fail to make any recommendation in connection with a determination whether tender or exchange offer, other than a recommendation against such offer or a “stop, look and listen” communication contemplated by Section 6.3(f) (any action described in this clause (i) being referred to construe as a “Recommendation Withdrawal”), or (ii) approve, adopt, recommend or authorize, or cause or permit the Company or any of its Subsidiaries to enter into, any letter of intent, memorandum of understanding, agreement (including an acquisition agreement, merger agreement, joint venture agreement or other agreement), commitment or agreement in principle with respect to any Acquisition Proposal (other than a confidentiality agreement entered into in accordance with Section 6.3(a)) (a “Company Acquisition Agreement”).
(c) Notwithstanding any other provision of this Agreement, including Sections 6.1 and 6.2, but subject to compliance with this Section 6.3, prior to receipt of the Company Stockholder Approval, but not after, the Board of Directors of the Company may, in response to any bona fide, unsolicited Acquisition Proposal from any Person that did not result from a breach of this Section 6.3, make a Recommendation Withdrawal, and subject to compliance with this Section 6.3(c) and Section 8.3(a) (including the payment of the Termination Fee), terminate this Agreement in order to enter into a binding agreement in respect of such Acquisition Proposal as a Superior OfferProposal, if, and only if, prior to the extent that taking either such action (A) the Company has complied in all material respects with its obligations under this Section 6.3; (B) the Board of Directors of the Company concludes in good faith, after consultation with its outside financial advisors and outside legal counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that Proposal; (AC) the Board of Directors of the Company concludes in good faith, after consultation with its outside legal counsel, that the failure to take the actions contemplated by this Section 6.3(c) would be inconsistent with its fiduciary obligations duties to the stockholders of the Company under applicable law require it to do so, Law; (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (yD) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure Board of all nonpublic written and oral information furnished to such party on behalf Directors of the Company, prior to making a Recommendation Withdrawal or terminating this Agreement, as applicable, provides Parent with at least four (4) Business Days’ prior written notice of its intention to take such action, specifying the reasons therefor, including the terms and conditions of, and the identity of the Person making, any such Acquisition Proposal and has contemporaneously provided to Parent a copy of the Superior Proposal, a copy of any proposed Company Acquisition Agreements and a copy of any financing commitments relating thereto (or, in each case, if not provided in writing to the Company, a written summary of the terms and conditions thereof) (it being agreed that the delivery of such notice by the Company shall not constitute a Recommendation Withdrawal); (E) during the four (4) Business Days following such written notice (or such shorter period as is specified below), if requested by Parent, the Board of Directors of the Company and its Representatives shall have negotiated in good faith with Parent and its Representatives to enable Parent to propose in writing revisions to the terms of which are this Agreement such that, if accepted by the Company and binding upon Parent, would cause such Superior Proposal to no longer constitute a Superior Proposal; and (F) at least as restrictive as the terms contained end of the four (4) Business Day period described in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activitiesforegoing clause (D), discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation Board of the restrictions set forth in the preceding two sentences by any officer, director or employee Directors of the Company concludes in good faith, after consultation with its outside financial advisors and outside legal counsel (and after taking into account any adjustment or any modification of the terms of this Agreement proposed by Parent that would, if accepted by the Company, be binding upon Parent), that the Acquisition Proposal continues to be a Superior Proposal and failure to take the actions contemplated by this Section 6.3(c) would be inconsistent with its subsidiaries or any investment banker, attorney or other advisor or representative fiduciary duties to the stockholders of the Company under applicable Law. Any change to any of the financial terms of the Acquisition Proposal (including the form, amount and timing of payment of consideration) or any other material terms of its subsidiaries shall the Acquisition Proposal will be deemed to be a breach new Acquisition Proposal for purposes of this Section 5.4 6.3 and the Company will be required to comply with the requirements of this Section 6.3(c) anew with respect thereto; provided, however, that in the event that the Company makes a Recommendation Withdrawal or seeks to terminate this Agreement as provided above in connection with any such new Acquisition Proposal, the notice period and the period during which the Company and its Representatives are required, if requested by Parent, to negotiate with Parent regarding any revisions to the terms of this Agreement proposed in writing by Parent in response to such new Acquisition Proposal pursuant to clauses (D) and (E) above shall expire on the later to occur of (x) 48 hours after the Company provides written notice of such new Acquisition Proposal to Parent or (y) the expiration of the four (4) Business Day period described in clause (C) above. Anything to the contrary contained herein notwithstanding, neither the Company nor any of its Subsidiaries shall enter into any Company Acquisition Agreement unless this Agreement has been terminated in accordance with its terms or such entry is contemporaneous with such termination.
(d) In addition to the obligations of the Company set forth in Section 6.3(a), Section 6.3(b) and Section 6.3(c), the Company shall promptly, and in any event no later than 48 hours after it receives any Acquisition Proposal, advise Parent in writing of any request for confidential information in connection with an Acquisition Proposal or of any Acquisition Proposal, the material terms and conditions of such request or Acquisition Proposal and shall keep Parent reasonably informed on a reasonably current basis (but in no event more often than once every 48 hours) of all material modifications to the terms of any Acquisition Proposal. The Company shall as promptly as practicable (and in any event within 48 hours) notify Parent if the Board of Directors of the Company makes a determination that an Acquisition Proposal constitutes or would reasonably be expected to result in a Superior Proposal, or if the Company furnishes information or enters into discussions or negotiations as provided in Section 6.3(a).
(e) Other than in connection with an Acquisition Proposal, the Company may, at any time prior to receipt of the Company Stockholder Approval, but not after, make a Recommendation Withdrawal in response to a Company Intervening Event (an “Intervening Event Recommendation Withdrawal”) if (i) the Company has complied in all material respects with its obligations under this Section 6.3 and (ii) prior to taking such action, the Board of Directors of the Company concludes in good faith, after consultation with its outside financial advisors and 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 prior to making such Intervening Event Recommendation Withdrawal, (A) the Company has given Parent at least four (4) Business Days’ prior written notice of its intention to take such action, and specifying the reasons therefor, including specifying in reasonable detail the applicable Company Intervening Event, (B) if requested by Parent, the Company shall have negotiated in good faith with Parent and its Representatives during such notice period to enable Parent to propose revisions to the terms of this Agreement, and (C) following the end of such notice period, the Board of Directors of the Company shall have considered in good faith any revisions to the terms of this Agreement proposed in writing by Parent that would, if accepted by the Company, be binding upon Parent, and concludes in good faith, after consultation with its outside financial advisors and outside legal counsel, that the failure to make an Intervening Event Recommendation Withdrawal would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law.
(f) Nothing contained in this Section 6.3 shall prohibit the Company or the Board of Directors of the Company from (i) taking and disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a)(2-3) or Rule 14d-9 promulgated under the Exchange Act or (ii) making any “stop, look and listen” communication to the stockholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act pending disclosure of its position thereunder; provided, that no such action or disclosure that would amount to a Recommendation Withdrawal shall be permitted, made or taken other than in compliance with this Section 6.3.
(g) For purposes of this Agreement:
Appears in 1 contract
No Solicitation. (a) Subject to None of the provisions Company, any of Section 5.2(cits directors, officers, employees, controlled Affiliates, representatives, agents or any director, officer, employee or controlled Affiliate of those Shareholders listed on Schedule 4.7(a) (collectively, “Agents”), from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company and its subsidiaries will not, nor will they authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them to, shall directly or indirectly, : (i) solicit, initiate, encourage support or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined), (ii) participate in any negotiations or discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal; (ii) disclose any information not customarily disclosed in the Ordinary Course of Business to any Third Party concerning the Company and which the Company believes will or is reasonably likely to be used for the purposes of formulating any offer, except as indication of interest or proposal for an Acquisition Proposal; (iii) assist, cooperate with, knowingly facilitate or encourage any Third Party to the existence make any offer, indication of these provisions, interest or proposal for an Acquisition Proposal; (iv) approveexecute, endorse approve or recommend accept or agree to execute, approve or accept or enter into a contract, arrangement, or understanding regarding any Acquisition Proposal or (other than a confidentiality agreement permitted by Section 4.7(b)); (v) enter into grant any letter of intent waiver or release under any standstill or similar document agreement with respect to any class of equity securities of the Company or (vi) authorize or permit any contractof the Company’s Agents to take any of the actions set forth in clauses (i) through (iv) above. Without limiting the foregoing, agreement it is agreed that any violation of the restrictions on the Company set forth in the preceding sentence by any Agent of the Company shall be a breach of this Section by the Company. The Company shall, and shall cause its Agents to, cease immediately and cause to be terminated any and all existing activities, discussions or commitment contemplating or otherwise relating negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Acquisition Transaction; providedProposal and shall use its reasonable best efforts to cause any such Third Party (or its agents or advisors) in possession of confidential information about the Company that was furnished by or on behalf of the Company to return or destroy all such information. During the term of this Agreement, howeverthe Company shall not take any actions to make any state takeover statute (including any California state takeover statute) or similar statute inapplicable to any Acquisition Proposal.
(b) Notwithstanding the foregoing, that nothing contained in this Section 5.4 shall prohibit at any time prior to obtaining the ----------------- Company Shareholder Approval, the Board of Directors of the Company from Company, directly or indirectly through advisors, agents or other intermediaries, may, subject to compliance with Section 4.7(c), (i) engage in response negotiations or discussions with any Third Party that, subject to the Company’s compliance with Section 4.7(c), has made after the date of this Agreement a Superior Proposal or an unsolicited, unsolicited bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded determines in good faith (based on, among other things, after considering the advice of a financial advisor of nationally recognized reputation), reputation and the Company’s outside legal counsel) is reasonably expected likely to lead to a Superior OfferProposal, furnishing (ii) thereafter furnish to such Third Party nonpublic information relating to the party making such Acquisition Proposal, and submitting Company pursuant to a confidentiality agreement with terms no less favorable to the party making such Acquisition Proposal written questions, Company than those contained in the sole purpose Confidentiality Agreement (a copy of which is shall be provided, promptly after its execution, for informational purposes only to elicit clarifications as Parent); provided that all such information (to the material terms extent that such information has not been previously provided or made available to Parent) is provided or made available to Parent, as the case may be, prior to or substantially concurrently with the time it is provided or made available to such Third Party) and (iii) following receipt of such Acquisition a Superior Proposal so as after the date of this Agreement, make an Adverse Recommendation Change, but in each case referred to enable in the foregoing clauses (i) through (iii) only if the Board of Directors of the Company to make determines in good faith by a determination whether to construe such Acquisition Proposal as a Superior Offermajority vote, after considering advice from outside legal counsel to the extent Company, that the failure to take such action is inconsistent with its fiduciary duties under applicable Law.
(Ac) the The Board of Directors of the Company concludes shall not take any of the actions referred to in good faithclauses (i) through (iii) of Section 4.7(b) (including, after consultation with its outside counselwithout limitation, that its fiduciary obligations under applicable law require it making an Adverse Recommendation Change) unless the Company shall be permitted to do soso in accordance with Section 4.7(b) and shall have delivered to Parent a written notice at least 48 hours prior to taking such action advising Parent that it intends to take such action, (B) (x) concurrently and the Company shall continue to advise Parent after taking such action of the status and material terms of any discussions and negotiations with furnishing any such nonpublic information to, or written questions to such partythe Third Party. In addition, the Company gives shall notify Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and promptly (ybut in no event later than 24 hours) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished after receipt by the Company to Parent) and (ii) in response of any Acquisition Proposal or any inquiry relating to an unsolicitedAcquisition Proposal, bona fide written any indication that a Third Party is considering making an Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal or any request for information relating to the extent that (A) Company or for access to the Board of Directors business, properties, assets, books or records of the Company concludes by any Third Party that has made an Acquisition Proposal (or under circumstances that would be reasonably likely to lead to an Acquisition Proposal), which notice shall be provided in good faithwriting and shall identify the Third Party making, after consultation with its outside counseland the material terms and conditions of, that its fiduciary obligations under applicable law require it to do soany such Acquisition Proposal, indication or request (Bincluding any changes thereto) (x) concurrently with entering into negotiations with such partyor request, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreementapplicable. The Company shall keep Parent reasonably informed, on a reasonably current basis, of the status and its subsidiaries will immediately cease material terms of any such Acquisition Proposal, indication or request or request, as applicable (including any material changes thereto) and shall promptly (but in no event later than 24 hours after receipt) provide to Parent copies of all existing activities, discussions correspondence and written materials sent or negotiations with provided to the Company that describes any parties conducted heretofore with respect to terms or conditions of any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Company.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Memc Electronic Materials Inc)
No Solicitation. (a) Subject The Company will not, the Company will cause its Subsidiaries and the Company's and its Subsidiaries' respective officers, directors and non-employee Representatives not to, and the Company will use commercially reasonable efforts to cause its and its Subsidiaries' respective employees not to, take the provisions following actions on behalf of Section 5.2(c), from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company and its subsidiaries will not, nor will they authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them to, directly or indirectly, Subsidiaries: (i) initiate, solicit, initiate, knowingly facilitate (including by way of furnishing confidential information) or knowingly encourage or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regardinga proposal that constitutes, or furnish to any person any non-public information with respect to, inquiry or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may could reasonably be expected to lead to, any Alternative Acquisition ProposalProposal made by any Person other than Parent and its Subsidiaries and their respective Representatives (any such Person, a "Third Party"); (ii) enter into with any Third Party any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding (other than any confidentiality agreement of the type referred to in clause "(3)" of the proviso to this sentence below) that contemplates an Alternative Acquisition (as defined in Section 5.2(f)(i)) by such Third Party (or by any Affiliate of such Third Party) or that requires the Company to abandon, terminate or fail to consummate the transactions contemplated by this Agreement; or (iii) continue or otherwise engage in discussions any negotiations with a Third Party or a Third Party's Representatives concerning, or provide any person confidential information regarding the Company to any Third Party or a Third Party's Representatives with respect to any Acquisition Proposalto, except as to the existence of these provisions, (iv) approve, endorse or recommend any an Alternative Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transactionmade by such Third Party; provided, however, that nothing that, notwithstanding anything to the contrary contained in this Section 5.4 shall prohibit Agreement, prior to the ----------------- Board of Directors Acceptance Time, the Company and its Subsidiaries and the respective Representatives of the Company from and its Subsidiaries may engage in any such negotiations and provide any such information as described in clause "(i) iii)" of this sentence in response to an unsolicited, bona fide written Alternative Acquisition Proposal from a reputable Third Party that did not result from a breach of clause "(i)" of this sentence if (1) such Alternative Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, and responsible third party for a Company Acquisition that the Company's Board of Directors of the Company has reasonably concluded determines in good faith (based on, among other things, the advice of after consultation with outside legal counsel and a financial advisor of nationally recognized reputation), is reasonably expected ) that the failure to lead to a Superior Offer, furnishing nonpublic engage in any such negotiations with or provide any such information to such Third Party or such Third Party's Representatives would be reasonably likely to result in a breach by the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Company's Board of Directors of its fiduciary duties to the Company's stockholders, (2) at least 24 hours prior to initiating any negotiations with such Third Party or such Third Party's Representatives concerning, or initially providing any confidential information regarding the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes Third Party or such Third Party's Representatives in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information response to, or written questions to such partyAlternative Acquisition Proposal, the Company gives Parent written notice of the identity of such Third Party and of the Company's intention to furnish nonpublic informationengage in negotiations with, or written questions furnish confidential information to, such Third Party or such Third Party's Representatives, (3) prior to providing any confidential information regarding the Company to such party and (y) Third Party or such Third Party's Representatives in response to such Alternative Acquisition Proposal, the Company receives from such party Third Party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral confidential information furnished to such party on behalf Third Party and such Third Party's Representatives by the Company that are no less favorable to the Company than the provisions of the Company, Confidentiality Agreement (and provided that such confidentiality agreement with such Third Party shall not contain restrictions that would prevent the terms of which are at least as restrictive as the terms contained in the Confidentiality AgreementCompany from complying with its obligations to provide required disclosure to Parent under this Section 5.2), and (C4) prior to or contemporaneously with furnishing providing any such nonpublic confidential information (whether initially or pursuant to subsequent deliveries of confidential information) to such partyThird Party or such Third Party's Representatives, the Company furnishes or otherwise makes the same such nonpublic confidential information available to Parent (to the extent such nonpublic confidential information has not been previously furnished or otherwise made available to Parent). 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. Notwithstanding anything to the contrary contained in this Agreement, the Company will not be responsible for, and will not be deemed to have breached this Agreement by virtue of, any actions by its or its Subsidiaries' employees that have not been authorized by the Company's senior management.
(b) As promptly as practicable after the receipt by the Company from a Third Party of any Alternative Acquisition Proposal, or any inquiry or proposal that the Company's Board of Directors determines in good faith could reasonably be expected to Parentlead to any Alternative Acquisition Proposal, and in any case within one business day after the Company's receipt thereof and prior to engaging in any negotiations with, or providing any confidential information to, such Third Party or such Third Party's Representatives, the Company shall provide written notice to Parent of (i) and such Alternative Acquisition Proposal or other inquiry or proposal, (ii) the identity of such Third Party, and (iii) the material terms and conditions of such Alternative Acquisition Proposal or other inquiry or proposal (including any amendments or modifications thereto). The Company shall (A) keep Parent reasonably informed on a current basis of, and upon Parent's request promptly update Parent on, the status of any such Alternative Acquisition Proposal, including any ongoing discussions or negotiations with the applicable Third Party with respect thereto, and any material changes to the terms and conditions of any such Alternative Acquisition Proposal, and (B) promptly (and no later than 24 hours after sending, and no later than one business day after receiving, such written communications or materials, as applicable) provide Parent with copies of all material written correspondence or other material written communications or materials (other than (without limiting the Company's obligations under clause "(4)" of the proviso to the first sentence of Section 5.2(a)) due diligence materials) sent or provided to or by the Company and its Representatives from or to the applicable Third Party and its Representatives relating to the material terms and conditions of any such Alternative Acquisition Proposal.
(c) Neither the Board of Directors of the Company nor any committee thereof shall (i) withdraw, modify, amend or qualify in any manner adverse to Parent the Company Board Recommendation, or make any public statement inconsistent with the Company Board Recommendation (any of the foregoing, a "Change in Recommendation"), (ii) fail to recommend against acceptance of a publicly announced tender offer that constitutes an Alternative Acquisition Proposal (and that remains pending) within ten business days after the Company receives a written request from Parent to recommend against such tender offer (provided that Parent shall not make such a request on more than one occasion with respect to any particular tender offer where the offer price and other material terms of such tender offer have not changed) or (iii) fail to reconfirm the Company Board Recommendation within ten business days after the Company receives a written request from Parent to do so if Parent makes such request promptly following the public announcement by a Third Party of an Alternative Acquisition Proposal (provided that Parent may not make such a request on more than one occasion with respect to any particular Alternative Acquisition Proposal where the price and other material terms of such Alternative Acquisition Proposal have not changed), unless, in the case of clause "(i)," clause "(ii)" or clause "(iii)" of this sentence, the Board of Directors of the Company determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) that failure to do so (i.e., that failing to make a Change of Recommendation, that recommending against acceptance of a tender 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 be reasonably likely to result in a breach by the Company's Board of Directors of its fiduciary duties to the Company's stockholders (A) by reason of there being pending an Alternative Acquisition Proposal, (B) by reason of there having been a favorable change in the circumstances of the Company or any of its Subsidiaries occurring after the date of this Agreement (or of which the Company first obtains knowledge after the date of this Agreement) that could be material to the decision of a holder of Company Shares as to whether to tender such Company Shares pursuant to the Offer or as to whether to vote to adopt this Agreement, or (C) for any other reason that could be material to any such decision of a holder of Company Shares.
(d) Neither the Board of Directors of the Company nor any committee thereof shall approve or recommend any Alternative Acquisition Proposal by a Third Party or cause or permit the Company to enter into with any Third Party any letter of intent, memorandum of understanding, merger agreement or other agreement, arrangement or understanding (other than any confidentiality agreement of the type referred to in clause "(3)" of the proviso to the first sentence of Section 5.2(a)) providing for any Alternative Acquisition by such Third Party. Notwithstanding the foregoing, prior to the Acceptance Time, the Board of Directors of the Company may, in response to an unsoliciteda Designated Superior Proposal (as defined in Section 5.2(f)(iii)), bona fide written Acquisition Proposal take any of the actions described in the first sentence of this Section 5.2(d) (collectively, "Specified Actions"); provided, however, that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to Board of Directors of the extent that Company may not take any Specified Action unless (Ai) the Board of Directors of the Company concludes determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) that taking such Specified Action is not inconsistent with its fiduciary duties to the Company's stockholders, (ii) the Board of Directors of the Company shall have first provided prior written notice to Parent that it intends to take a Specified Action in response to a 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 Alternative Acquisition contemplated by such Designated Superior Proposal and (iii) Parent does not make, during the period commencing upon the receipt of such Notice of Designated Superior Proposal and ending five business days thereafter (the "Matching Period"), a binding, unconditional written offer (including the complete form of definitive acquisition agreement executed on behalf of Parent and all exhibits and other attachments thereto, subject to acceptance by the Company by countersignature on behalf of the Company, and subject to no other conditions whatsoever) that the Board of Directors of the Company 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 stockholders of the Company as such Designated Superior Proposal. The Company agrees that, during the Matching Period, the Company and its outside counselRepresentatives shall negotiate with Parent in good faith with respect to possible revisions to the terms of this Agreement if any proposed revisions to the terms of this Agreement are offered in writing by Parent to the Company. The Company further agrees that it will deliver to Parent a new Notice of Designated Superior Proposal with respect to (A) 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 its stockholders, that its fiduciary obligations under applicable law require it to do so, and (B) each other 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 made during a Matching Period, and that a new Matching Period shall commence for purposes of this Section 5.2(d) under either of the circumstances described in clauses "(x) concurrently with entering into negotiations with A)" and "(B)" above at the time Parent receives the new Notice of Designated Superior Proposal; provided, however, that any such partynew Matching Period shall be only three business days in duration. Notwithstanding anything to the contrary contained in this Agreement, the Company gives Parent written notice of the Company's intention shall not be entitled to enter into negotiations with such party any definitive agreement contemplating any Designated Superior Proposal unless this Agreement has been, or concurrently is, terminated by its terms pursuant to Section 7.1 and (y) the Company receives from has paid, or concurrently with the entering into of such party an executed confidentiality definitive agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished pays, by cashier's check, or otherwise by immediately available funds, any termination fee due to such party on behalf of the Company, the terms of which are at least as restrictive as the terms Parent pursuant to Section 7.3.
(e) Nothing contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions this Section 5.2 or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth elsewhere in the preceding two sentences by any officer, director or employee of this Agreement shall prohibit the Company or any its Board of its subsidiaries Directors from complying with Rule 14d-9 or any investment banker, attorney Rule 14e-2 or other advisor Item 1012(a) of Regulation M-A under the Exchange Act or representative of the Company from furnishing a copy or any of its subsidiaries shall be deemed to be a breach excerpts of this Section 5.4 by the CompanyAgreement to any Third Party (or to any Representative of any Third Party) that makes any Alternative Acquisition Proposal or that makes any inquiry that could lead to an Alternative Acquisition Proposal.
(f) For purposes of this Agreement:
Appears in 1 contract
No Solicitation. (a) Subject to the provisions of Section 5.2(c)The Company shall not directly or indirectly, from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company and its subsidiaries will not, nor will they shall not authorize or permit any of their respective officers, directors, affiliates or employees other Acquired Corporation or any investment banker, attorney or other advisor or representative retained by Representative of any of them to, the Acquired Corporations directly or indirectlyindirectly to, (i) solicit, initiate, encourage encourage, induce or induce facilitate the making, submission or announcement of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may could reasonably be expected to lead toto an Acquisition Proposal, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could lead to an Acquisition Proposal, (iii) engage in discussions or negotiations with any person Person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment Contract contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained this Section 4.3 shall not be deemed to prevent the Company or its board of directors from complying with its legal obligations under Rules 14d-9 and 14e-2 as promulgated under the Exchange Act with regard to an Acquisition Proposal (it being understood that such compliance may constitute a Triggering Event under certain circumstances); and provided, further, that prior to the adoption of this Agreement by the Required Company Stockholder Vote, this Section 4.3(a) shall not prohibit the Company from furnishing nonpublic information regarding the Acquired Corporations to, or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Acquired Corporations shall have breached or taken any action inconsistent with any of the provisions set forth in this Section 5.4 shall prohibit the ----------------- Board of Directors of the Company from 4.3, (i) in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A2) the Board board of Directors directors of the Company concludes in good faith, after consultation having consulted 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 stockholders under applicable law require it to do solaw, (B3) (x) concurrently with at least two business days prior to furnishing any such nonpublic information to, or written questions to entering into discussions with, such partyPerson, the Company gives Parent written notice of the identity of such Person and of the Company's intention to furnish nonpublic informationinformation to, or written questions to enter into discussions with, such party Person, and (y) the Company receives from such party Person an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party Person by or on behalf of the Company, Company and containing "standstill" provisions no less favorable to the terms of which are at least as restrictive as Company than the terms "standstill" provisions contained in section 4 of that certain Mutual Confidentiality Agreement dated October 10, 2000 between the Company and Parent (the "Confidentiality Agreement"), and (C4) contemporaneously with at least two business days prior to furnishing any such nonpublic information to such partyPerson, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal). Without limiting the generality of the foregoing, it is understood the Company acknowledges and agrees that any violation action inconsistent with any of the restrictions provisions set forth in the preceding two sentences sentence by any officer, director or employee Representative of any of the Company Acquired Corporations, whether or not such Representative is purporting to act on behalf of any of its subsidiaries or any investment bankerthe Acquired Corporations, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be constitute a breach of this Section 5.4 by the Company.4.3
Appears in 1 contract
Sources: Merger Agreement (Global Sports Inc)
No Solicitation. (a) Subject to the provisions of Section 5.2(c), from From and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VIIhereof, neither Parent nor the Company will, and each will use its subsidiaries will not, nor will they authorize or permit best efforts to cause any of their respective its officers, directors, affiliates or employees or any investment bankeremployees, attorney attorneys, financial advisors, agents or other advisor representatives or representative retained by those of any of them its Subsidiaries not to, directly or indirectly, (ia) solicit, initiate, initiate or knowingly encourage or induce the making, submission or announcement (including by way of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any person any furnishing non-public information with respect to, or take any other action to facilitate any inquiries or the making of information) any proposal or offer from any person that constitutes constitutes, or may reasonably be expected to lead to, any Acquisition Proposala Takeover Proposal (as hereinafter defined), or (iiib) engage in or continue discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise negotiations relating to any Acquisition Transactiona Takeover Proposal; provided, however, that nothing contained in this Section 5.4 shall prohibit prior to the ----------------- Board receipt of Directors of approval by their respective shareholders, either Parent or the Company from (i) may engage in response to an unsoliciteddiscussions or negotiations with, bona fide written Acquisition Proposal from a reputable or furnish information concerning itself and responsible its Subsidiaries, business, properties or assets to, any third party for which makes a Company Acquisition that Takeover Proposal (as hereinafter defined) if the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of either Parent or the Company concludes in good faith, after consultation with faith on the basis of the advice of its outside counselcounsel (Sommer & Barnard, that its PC ▇▇▇ ▇ach▇▇▇▇, ▇ipton, Rosen & Katz, respec▇▇▇▇▇y) ▇▇▇▇ the failure to take such action would violate the fiduciary obligations of such Board under applicable law require it law. Each of Parent and the Company will promptly (but in no case later than 24 hours) notify (and if in writing, provide a copy to) the other of any Takeover Proposal, including the material terms and conditions thereof. As used in this Agreement, "Takeover Proposal" shall mean any proposal or offer, or any expression of interest by any third party relating to do soParent's or the Company's willingness or ability to receive or discuss a proposal or offer, for (A) a tender or exchange offer, or other acquisition of beneficial ownership of, in each case 30% or more of the outstanding voting capital stock of Parent or the Company, respectively, (B) (x) concurrently with furnishing any such nonpublic information toa merger, consolidation or written questions to such party, the Company gives other business combination involving either Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries their respective Subsidiaries or (C) any investment banker, attorney proposal to acquire in any manner 30% or other advisor or representative more of the assets of, either Parent or the Company or any of its subsidiaries shall be deemed to be and their respective Subsidiaries, taken as a breach of this Section 5.4 by the Companywhole.
Appears in 1 contract
Sources: Merger Agreement (Proffitts Inc)
No Solicitation. (a) Subject to the provisions of Section 5.2(c)The Company agrees that, from and after the date of this Agreement until the earlier of the date of its termination and the Effective Time Time, neither it nor any of its Subsidiaries nor any of the officers or termination directors of this Agreement pursuant to Article VII, the Company and it or its subsidiaries will notSubsidiaries, nor will they authorize its or permit their employees, investment bankers, attorneys, accountants, financial advisors, agents or other representatives (collectively, “Representatives”), shall directly or indirectly, initiate, encourage, solicit or otherwise induce any inquiries or the making of a Company Acquisition Proposal (as defined below). The Company further agrees that neither it nor any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by its Subsidiaries nor any of them its or its Subsidiaries’ officers or directors shall, and that it shall direct and use its best reasonable efforts to cause its Representatives not to, directly or indirectly, (i) solicit, initiate, encourage have any discussions with or induce the making, submission provide any confidential information or announcement of data to any Person relating to a Company Acquisition Proposal (as hereinafter defined), (ii) participate or engage in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any concerning a Company Acquisition Proposal, (iii) engage in discussions with or otherwise facilitate any person with respect effort or attempt to any make or implement a Company Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in this Agreement shall prevent the Company or its Board of Directors from (a) making any disclosure to its stockholders if, in the good faith judgment of its Board of Directors, failure so to disclose would be inconsistent with its obligations under applicable law; (b) negotiating with or furnishing information to any Person who has made a bona fide written Company Acquisition Proposal which did not result from a breach of this Section 5.4 6.2; or (c) recommending such Company Acquisition Proposal to its stockholders, if and only to the extent that, in the case of actions referred to in clause (b) or clause (c), such Company Acquisition Proposal is a Superior Proposal (as defined below) and Parent is given at least two (2) business days’ written notice of the identity of the third party and all material terms and conditions of the Superior Proposal to respond to such Superior Proposal. The Company agrees that it will, on the date hereof, immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any Company Acquisition Proposal. Nothing contained in this Agreement shall prohibit prevent the ----------------- Board of Directors of the Company from (i) in response complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition Proposal; provided that the Board of Directors of the Company has reasonably concluded (based on, among other things, shall not recommend that the advice stockholders of the Company tender their shares in connection with a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information tender offer except to the party making extent the Board of Directors of the Company determines in its good faith judgment that such Acquisition Proposal, and submitting a recommendation is required to comply with the party making such Acquisition Proposal written questions, the sole purpose fiduciary duties of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faithstockholders under applicable law, after consultation with its receiving the advice of outside legal counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Company.
Appears in 1 contract
Sources: Merger Agreement (Symmetricom Inc)
No Solicitation. (a) Subject to the provisions of Section 5.2(c), from and after the date Upon execution of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company and its subsidiaries will not, nor will they authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them to, directly or indirectly, (i) solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors of the Company from (i) in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, Seller shall cease immediately and (C) contemporaneously with furnishing any such nonpublic information cause to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease be terminated any and all existing activities, discussions or negotiations with any parties Person conducted heretofore with respect to, or that may reasonably be expected to lead to, an Acquisition Proposal.
(b) Except as authorized or permitted in this Section 6.4, Seller agrees that neither it nor any of its Subsidiaries shall, and that it shall use its reasonable best efforts to cause its and their respective Representatives not to, directly or indirectly, (i) initiate, solicit, encourage or take any other action knowingly to facilitate the submission of any Acquisition Proposal. Without limiting , (ii) participate in any negotiations regarding, or furnish any non-public information to any Person (other than Buyer) in connection with an Acquisition Proposal, (iii) enter into any letter of intent or similar agreement providing for an Acquisition Proposal, or (iv) approve or recommend an Acquisition Proposal.
(c) Notwithstanding the foregoinglimitations set forth in Section 6.4(b), it is understood that from the date hereof and prior to the receipt of the Seller Stockholders’ Approval, Seller or any of its Representatives may, in response to a bona fide written Acquisition Proposal not obtained in violation of the restrictions provisions of Section 6.4(b), (i) furnish information to the third party making such Acquisition Proposal (a “Qualified Bidder”), provided Seller receives from the Qualified Bidder an executed confidentiality agreement (the terms of which are substantially similar to those contained in the Confidentiality Agreement except for any standstill or similar provisions), and (ii) engage in discussions or negotiations with the Qualified Bidder and its representatives with respect to the Acquisition Proposal, in each case if but only if (A) the board of directors of Seller determines, in good faith based on advice from its financial advisors, that such Acquisition Proposal constitutes, or is reasonably expected to lead to, a Superior Proposal, and (B) the board of directors of Seller determines, in good faith based on the written advice from its outside legal counsel, that failure to take either of the actions set forth in the preceding two sentences by foregoing clauses (i) and (ii) would cause it to violate its fiduciary duties to the Seller Stockholders under applicable Law.
(d) Except as otherwise provided in Section 6.4(e), neither the board of directors of Seller nor any officer, director or employee committee of the Company board of directors of Seller may withdraw or change in a manner adverse to Buyer the Seller Recommendation, or propose publicly to approve, adopt or recommend any of its subsidiaries or Acquisition Proposal (an “Adverse Recommendation Change”).
(e) Notwithstanding Section 6.4(d), at any investment banker, attorney or other advisor or representative time prior to the receipt of the Company Seller Stockholders’ Approval, if Seller receives an Acquisition Proposal that the board of directors of Seller concludes in good faith, after consultation with Seller’s outside legal counsel and financial advisors, constitutes a Superior Proposal, the board of directors of Seller may (i) effect an Adverse Recommendation Change, and/or (ii) enter into a definitive agreement with respect to such Superior Proposal (an “Acquisition Agreement”) and terminate this Agreement in accordance with Section 8.1(h); provided, however, that such actions may only be taken (A) at a time that is prior to the receipt of the Seller Stockholders’ Approval and after the fifth (5th) Business Day following Buyer’s receipt of written notice from Seller that the board of directors of Seller and/or a committee of the board of directors of Seller is prepared to take such action (which notice will specify the material terms of the applicable Superior Proposal) (the “Subsequent Determination Notice”), and (B) if, at the end of such period, the board of directors of Seller and/or a committee of the board of directors of Seller determines in good faith, after taking into account all amendments or revisions irrevocably committed to by Buyer and after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal remains a Superior Proposal. During any of its subsidiaries such five (5) Business Day period, Buyer shall be deemed entitled to deliver to Seller one or more counterproposals to such Superior Proposal.
(f) From and after the execution of this Agreement, Seller shall notify Buyer promptly (but in any event within 48 hours) after the receipt of any inquiries, discussions, negotiations, proposals or expressions of interest with respect to an Acquisition Proposal (including a summary of the material terms and conditions thereof, including price, and the identity of the Person making any Acquisition Proposal).
(g) Nothing in this Section 6.4 shall prohibit Seller from complying with Rule 14e-2 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act with regard to an Acquisition Proposal if, in the good faith judgment of the board of directors of Seller and/or a committee of the board of directors of Seller, after consultation with its outside legal counsel, that failing to take such action would be inconsistent with its obligations under applicable Law.
(h) For the purposes of this Agreement, “Superior Proposal” shall mean any bona fide written Acquisition Proposal made by a third party that the board of directors of Seller and/or a committee of the board of directors of Seller determines in good faith, after consultation with its outside legal counsel and financial advisor, to be a breach more favorable to Seller than the transactions contemplated by this Agreement, taking into account all financial, regulatory, legal and other aspects of this Section 5.4 by such Acquisition Proposal including, without limitation, the Companylikelihood of consummation.
Appears in 1 contract
No Solicitation. From the date hereof and through the Closing --------------- (athe "Nonsolicitation Period"), each of the Company and APL shall, and shall cause their respective representatives, affiliates, agents, financial advisors and employees (collectively, "Representatives") Subject to, refrain from soliciting, discussing, providing information to or negotiating, directly or indirectly, with any third party (other than Purchaser and its Representatives) any inquiries, proposals or offers with respect to the sale of the Common Stock or any portion of the Company's assets or securities (an "Acquisition Proposal") (other than sales and other dispositions of assets in the ordinary course of business which are not material to the Business); provided, -------- however, that, subject to the provisions of Section 5.2(c)7.2, from and after at any time prior to ------- the date earlier of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company and its subsidiaries will not, nor will they authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them to, directly or indirectly, (i) solicitApril 30, initiate1999 and (ii) the time the shareholders of NOL shall have voted to approve this Agreement, encourage if NOL or induce APL shall receive from any third party an unsolicited Acquisition Proposal and determines in good faith upon the makingadvice of its financial advisors that such unsolicited Acquisition Proposal is superior in its terms to the terms contemplated hereunder, submission NOL or announcement APL may, and may authorize and permit its Representatives to, provide third parties with nonpublic information, otherwise facilitate any effort or attempt by any third party to implement such Acquisition Proposal, recommend or endorse such Acquisition Proposal with or by any third party, and participate in discussions and negotiations with any third party relating to such Acquisition Proposal. NOL or APL shall promptly advise the Purchaser following the receipt by NOL or APL of any Acquisition Proposal and the substance thereof (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or including the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors identity of the Company from (i) in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party person making such Acquisition Proposal), and submitting advise the Purchaser of any developments with respect to the party making such Acquisition Proposal written questions, promptly upon the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Companyoccurrence thereof.
Appears in 1 contract
No Solicitation. (a) Subject The Company shall not, directly or indirectly, through any officer, director, representative or agent of the Company or any of its subsidiaries, and the Company shall use its best efforts to ensure that the provisions employees of Section 5.2(c), from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company and its subsidiaries will do not, nor will they authorize solicit or permit any encourage the initiation of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained (including by any way of them to, directly or indirectly, (ifurnishing information) solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or proposals regarding any merger, sale of assets, sale of shares of capital stock (including, without limitation, by way of a tender offer) or similar transactions involving the making Company or any subsidiaries of the Company that if consummated would constitute an Alternative Transaction (as defined in Section 7.01) (any proposal that constitutes of the foregoing inquiries or may reasonably be expected proposals being referred to lead to, any herein as an "Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing "). Nothing contained in this Section 5.4 Agreement shall prohibit prevent the ----------------- Board of Directors of the Company from (i) in response furnishing information to an unsolicited, a third party which has made a bona fide written Acquisition Proposal from that is a reputable and responsible Superior Proposal (as defined below) not solicited in violation of this Agreement, provided that such third party for a has executed an agreement with confidentiality provisions substantially similar to those then in effect between the Company Acquisition and Parent (except that such agreement may permit such third party, consistent with the other terms hereof, to present one or more further proposals to the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputationCompany), (ii) subject to compliance with the other terms of this Section 4.02, including Section 4.02(c), considering and negotiating a bona fide Acquisition Proposal that is reasonably expected to lead to a Superior OfferProposal not solicited in violation of this Agreement, furnishing nonpublic information to the party making such (iii) following receipt of an Acquisition Proposal, taking and submitting disclosing to its stockholders a position as required by Rules 14d-9 and 14e-2(a) of the Exchange Act or otherwise making disclosure to the party making such Company's stockholders to the extent required by applicable law and (iv) following receipt of an Acquisition Proposal written questionsthat is a Superior Proposal, the sole purpose of which is modifying its recommendations referred to elicit clarifications as in Section 5.02 (subject to the material terms of such Acquisition Proposal so Section 5.02); provided, however, that, as to enable the Board each of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that clauses (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parenti) and (ii) in response to an unsolicited), bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, actions occur at a time prior to approval of the Merger and this Agreement at the Company gives Parent written notice of Stockholders Meeting (or, if the Company's intention to enter into negotiations with such party and (y) Merger has not been consummated within 30 days after the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Company.Stockholders Meeting
Appears in 1 contract
Sources: Merger Agreement (Autotote Corp)
No Solicitation. (a) Subject to the provisions of Section 5.2(c), from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company and its subsidiaries will shall not, and nor will they it authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them toknowingly permit, directly or indirectly, any officer, director, financial advisor, representative, employee or agent of Company to, (i) solicit, initiate, or encourage any proposals that constitute, or induce could reasonably be expected to lead to, a proposal or offer for a merger, consolidation, business combination, share exchange, recapitalization, sale of all or substantially all of its assets, sale of shares (other than pursuant to the makingIncentive Plan or Performance Share Plan) of capital stock (including without limitation by way of a tender offer) or similar transaction involving Company or any of its Subsidiaries, submission or announcement other than the transactions contemplated by this Agreement (any of any the foregoing proposals 30 37 being referred to in this Agreement as an "Acquisition Proposal (as hereinafter definedProposal"), (ii) participate engage in any discussions or negotiations regarding, or furnish to any person provide any non-public information with respect to any person or entity relating to, or take any other action intended to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead tofacilitate, any Acquisition Proposal, or (iii) engage in discussions with any person with respect agree to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition TransactionProposal; provided, however, that nothing contained in this Section 5.4 Agreement shall prohibit the ----------------- prevent Company, or its Board of Directors Directors, prior to the date of the Company Stockholder Meeting referred to in Section 6.05, from (iA) furnishing non-public information to, or entering into negotiations with, any person or entity in response to connection with an unsolicited, unsolicited bona fide written Acquisition Proposal from a reputable and responsible third party for a Company by such person or entity or recommending an unsolicited bona fide written Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information Proposal to the party making such Acquisition Proposalstockholders of Company, if and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, only to the extent that (A1) such Acquisition Proposal was not made by a person or entity with whom Company has actively negotiated regarding an Acquisition Proposal within the three (3) month period prior to the date of this Agreement, (2) Company's Board of Directors of the Company concludes in good faith, (after consultation with its outside legal counsel, ) determines in good faith that such action is legally advisable for the Board of Directors to comply with its fiduciary obligations duties to Company's stockholders under applicable law require it to do solaw, (B3) such Acquisition Proposal is not subject to any financing contingencies or is, in the good faith judgment of Company's Board of Directors (xafter consultation with its financial advisor), reasonably capable of being financed by such other person or entity, (4) concurrently Company's Board of Directors determines in good faith (after consultation with furnishing its financial advisor) that such Acquisition Proposal is reasonably capable, taking into account all legal, financial, regulatory and other aspects of the proposal and the person or entity making the proposal, of being completed and would, if consummated, result in a transaction more favorable to Company's stockholders than the transaction contemplated by this Agreement (any such nonpublic more favorable Acquisition Proposal being referred to in this Agreement as a "Superior Proposal"), and (5) prior to furnishing such non-public information to, or written questions to entering into negotiations with, such partyperson or entity, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives Board of Directors received from such party person or entity an executed confidentiality agreement containing customary limitations on the use with terms regarding confidentiality and disclosure of all nonpublic written and oral information furnished standstill provisions no less favorable to such party on behalf of the Company, the terms of which are at least as restrictive as the terms Company than those contained in the existing Non-Disclosure Agreement between Partner and Company (the "Confidentiality Agreement, ") and (C) contemporaneously with furnishing shall have notified Partner of any such nonpublic information to such partyAcquisition Proposal, including the Company furnishes such nonpublic information to Parent (to material terms and conditions thereof and the extent such nonpublic information has not been previously furnished by identity of the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party person or entity making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, proposal; or (B) (x) concurrently complying with entering into negotiations Rule 14e-2 promulgated under the Exchange Act with such party, the Company gives Parent written notice of the Company's intention regard to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Company.
Appears in 1 contract
No Solicitation. (a) Subject The Company shall, and shall use ------------- --------------- its reasonable best efforts to the provisions of Section 5.2(c)cause its Subsidiaries, from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company and its subsidiaries will and their, officers, directors, employees, financial advisors, attorneys and other advisors, representatives and agents (collectively, "Representatives") to, --------------- immediately cease any discussions or negotiations with third parties with respect to any Takeover Proposal. The Company shall not, nor will they shall it authorize or permit any of their respective officersits Representatives, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them to, directly or indirectly, to (i) directly or indirectly solicit, initiatefacilitate, initiate or encourage the making or induce the makingsubmission of, submission or announcement of any Acquisition Proposal (as hereinafter defined)Takeover Proposal, (ii) enter into any agreement, arrangement or understanding with respect to any Takeover Proposal or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, (iii) initiate or participate in any way in any discussions or negotiations regarding, or furnish or disclose to any person Person (other than a party to this Agreement) any non-public information with respect to, or take any other action to facilitate or in furtherance of any inquiries or the making of any proposal that constitutes constitutes, or may could reasonably be expected to lead to, any Acquisition Proposal, Takeover Proposal or (iiiiv) engage in discussions with grant any person waiver or release under any standstill or similar agreement with respect to any Acquisition Proposal, except as class of the Company's equity securities; provided that prior to the existence of these provisionsAcceptance -------- Date, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors of the Company from (i) in response to an unsolicitedunsolicited Takeover Proposal that did not result from the breach of this Section 7.07 and following delivery to Parent of notice of the Takeover Proposal in compliance with its obligations under Section 7.07(d) hereof, the Company may participate in discussions or negotiations with or furnish information (pursuant to a confidentiality agreement with customary terms) to any third party which makes a bona fide written Acquisition Takeover Proposal from if (A) a reputable and responsible third party for a Company Acquisition that majority of the Company's Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes determines in good faith, faith (after consultation with its outside counsel, financial advisors) that its fiduciary obligations under applicable law require it taking such action would be reasonably likely to do so, lead to the delivery to the Company of a Superior Proposal and (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice a majority of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors determines in good faith (after receiving the advice of outside legal counsel) that it is necessary to take such actions(s) in order to comply with its fiduciary duties under applicable law. For purposes of this Agreement, "Takeover Proposal" means any ----------------- inquiry, proposal or offer from any Person or group relating to (i) any direct or indirect acquisition or purchase of 20% or more of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee assets of the Company or any of its subsidiaries Subsidiaries or 20% or more of any investment banker, attorney or other advisor or representative class of equity securities of the Company or any of its subsidiaries shall be deemed Subsidiaries, (ii) any tender offer or exchange offer that, if consummated, would result in any Person beneficially owning all or any portion of any class of equity securities of the Company or any of its Subsidiaries or (iii) any merger, consolidation, business combination, sale of all or any substantial portion of the assets, recapitalization, liquidation or a dissolution of, or similar transaction involving the Company or any of its Subsidiaries other than the Offer or the Merger; and "Superior Proposal" means a ----------------- bona fide written Takeover Proposal made by a third party to purchase at least two-thirds of the outstanding equity securities of the Company pursuant to a tender offer or exchange offer or to effect any merger, consolidation, business combination or sale of all or substantially all of the assets, recapitalization or similar transaction involving the Company (i) on terms which a majority of the Company's Board of Directors determines in good faith (after consultation with its financial advisors) to be superior to the Company and its shareholders (in their capacity as shareholders) from a breach financial point of view (taking into account, among other things, all legal, financial, regulatory and other aspects of the proposal and identity of the offeror) as compared to the transactions contemplated hereby and any alternative proposed by Parent or Merger Sub in accordance with Section 9.01(c)(ii) and (ii) which is reasonably capable of being consummated.
(b) The Company agrees that, except as set forth in Section 7.07(c), neither its Board of Directors nor any committee thereof shall (i) approve or recommend, or propose to approve or recommend, any Takeover Proposal or (ii) approve, recommend or cause it to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an "Acquisition Agreement") related to any Takeover Proposal. ----------------------
(c) The Company and Parent agree that, notwithstanding anything to the contrary herein, prior to the Acceptance Date, the Company and/or its Board of Directors may take the actions otherwise prohibited by Section 7.07(b) if (i) a third party makes a Superior Proposal, (ii) the Company complies with its obligations under Section 7.07(d), (iii) all of the conditions to the Company's right to terminate this Agreement in accordance with Section 9.01(c)(ii) hereof have been satisfied (including the expiration of the six Business Day period described therein and the payment of all amounts required pursuant to Section 9.03 hereof) and (iv) simultaneously therewith, this Agreement is terminated in accordance with Section 9.01(c)(ii) hereof.
(d) The Company agrees that in addition to the obligations of the Company set forth in paragraphs (a), (b) and (c) of this Section 5.4 7.07, promptly on the date of receipt thereof, the Company shall advise Parent in writing of any request for information or any Takeover Proposal, or any inquiry, discussions or negotiations with respect to any Takeover Proposal and the terms and conditions of such request, Takeover Proposal, inquiry, discussions or negotiations and the Company shall promptly provide to Parent copies of any written materials received by the Company in connection with any of the foregoing, and the identity of the Person or group making any such request, Takeover Proposal or inquiry or with whom any discussions or negotiations are taking place. The Company agrees that it shall keep Parent fully informed of the status and details (including amendments or proposed amendments) of any such request, Takeover Proposal or inquiry and keep Parent fully informed as to the material details of any information requested of or provided by the Company and as to the details of all discussions or negotiations with respect to any such request, Takeover Proposal or inquiry. The Company agrees that it shall simultaneously provide to Parent any non-public information concerning the Company provided to any other Person or group in connection with any Takeover Proposal which was not previously provided to Parent.
(e) Parent agrees that nothing contained in this Section 7.07 shall prohibit the Company from taking and disclosing to its shareholders a position contemplated by Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with respect to any tender offer.
(f) The Company agrees that immediately following the execution of this Agreement, (i) it shall request each Person which has heretofore executed a confidentiality agreement in connection with such Person's consideration of acquiring the Company to return or destroy (which destruction shall be certified in writing by an executive officer of the Company) all confidential information heretofore furnished to such Person by or on its behalf and (ii) the Company shall cease and cause to be terminated immediately all existing discussions or negotiations with any Person conducted heretofore with respect to, or that could reasonably be expected to lead to, any Takeover Proposal.
Appears in 1 contract
Sources: Merger Agreement (Fort James Corp)
No Solicitation. (a) Subject to the provisions of Section 5.2(c), from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the The Company and its subsidiaries will shall not, nor will they shall it --------------- permit any of its Subsidiaries to, nor shall it authorize or permit any officer, director or employee of their respective officers, directors, affiliates or employees or any investment bankerfinancial advisor, attorney or other advisor or representative retained by of, the Company or any of them its Subsidiaries to, directly or indirectly, (i) solicit, initiateinitiate or encourage the submission of, encourage or induce the making, submission or announcement of any Acquisition Takeover Proposal (as hereinafter hereafter defined), (ii) enter into any agreement with respect to or approve or recommend any Takeover Proposal or (iii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect toto the Company or any Subsidiary in connection with, or take any other action to facilitate any inquiries or the making of any proposal that constitutes constitutes, or may reasonably be expected to lead to, any Acquisition Takeover Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing -------- ------- contained in this Section 5.4 4.2(a) shall prohibit the ----------------- Company or its directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to a tender or exchange offer or (ii) referring a third party to this Section 4.2(a) or making a copy of this Section 4.2(a) available to any third party; and provided, further, that prior to the Shareholder Meeting, if the -------- ------- Board of Directors of the Company from reasonably determines the Takeover Proposal constitutes a Superior Proposal (i) in response as defined below), then, to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the extent required by the fiduciary obligations of the Board of Directors of the Company has reasonably concluded (based onCompany, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes determined in good faith, faith by a majority thereof after consultation with its outside independent counsel (who may be the Company's regularly engaged independent counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party), the Company gives Parent written notice of the Company's intention to furnish nonpublic informationmay, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (iiA) in response to an unsolicitedunsolicited request therefor, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations furnish information with the party making such Acquisition Proposal respect to the extent that Company and its Subsidiaries to any person pursuant to a customary confidentiality statement (Aas determined by the Company's independent counsel) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, and (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice withdraw or modify its recommendation of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality this Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences sentence by any officer, officer or director or employee of the Company or any of its subsidiaries Subsidiaries or any investment bankerfinancial advisor, attorney or other advisor or representative of the Company or any of its subsidiaries 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 5.4 4.2(a) by the Company. For purposes of this Agreement, "Takeover Proposal" means any proposal for a merger, tender offer or other ------------------ business combination involving the Company or any of its Subsidiaries or any proposal or offer to acquire in any manner, directly or indirectly, an equity interest in, any voting securities of, or a substantial portion of the assets of the Company or any of its Subsidiaries, other than the transactions contemplated by this Agreement and the Stock Option Agreement, and "Superior Proposal" means ----------------- a bona fide proposal made by a third party to acquire the Company pursuant to a tender or exchange offer, a merger, a sale of all or substantially all its assets or otherwise on terms which a majority of the disinterested members of the Board of Directors of the Company determines, at a duly constituted meeting of the Board of Directors or by unanimous written consent, in its reasonable good faith judgment to be more favorable to the Company's shareholders than the Merger (based on the advice of the Company's independent financial advisor that the value of the consideration provided for in such proposal exceeds the value of the consideration provided for in the Merger) and for which financing, to the extent required, is then committed or which, in the reasonable good faith judgment of a majority of such disinterested members, as expressed in a resolution adopted at a duly constituted meeting of such members (based on the advice of the Company's independent financial advisor), is reasonably capable of being obtained by such third party.
Appears in 1 contract
No Solicitation. (a) Subject Notwithstanding any other provision of this Agreement to the provisions of Section 5.2(c)contrary, from and the date of this Agreement until 11:59 p.m. New York City time on the date which is forty (40) days after the date of this Agreement until (the Effective Time or termination of this Agreement pursuant to Article VII"Go-Shop Period End Date"), the Company and its subsidiaries will not, nor will they authorize or permit any of Subsidiaries and their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any Representatives shall have the right (acting under the direction of them to, the Special Committee) to directly or indirectly, indirectly (i) solicit, initiate, solicit and encourage or induce the makingAlternative Transaction Proposals, submission or announcement including by way of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish public disclosure and by way of providing access to any person any non-public information to any Person (each a "Solicited Person") pursuant to (but only pursuant to) one or more Acceptable Confidentiality Agreements; provided, that the Company shall promptly provide to Parent any material non-public information concerning the Company or its Subsidiaries that it has provided to any Solicited Person which was not previously provided to Parent; and (ii) enter into and maintain discussions or negotiations with respect toto Alternative Transaction Proposals or otherwise cooperate with, assist or participate in, facilitate, or take any other action to facilitate in connection with any inquiries such inquiries, proposals, discussions or negotiations. Within forty-eight (48) hours following the making Go-Shop Period End Date, the Company shall notify Parent of the material terms and conditions of the Alternative Transaction Proposals (including any proposal amendments or modifications thereof) received from any Excluded Party and the identity thereof. The Company shall immediately cease any discussions with any Person (other than Parent and any Excluded Party) that constitutes are ongoing as of the Go-Shop Period End Date and that relate, or may reasonably be expected expected, to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any an Alternative Acquisition Proposal, except as otherwise expressly provided in Sections 6.7(b) and 6.7(c). As used in this Agreement, the term "Acceptable Confidentiality Agreement" means a confidentiality and standstill agreement that contains provisions that are no less favorable in the aggregate to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors of the Company from (i) in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms than those contained in the Confidentiality Agreement, Agreement and (C) contemporaneously with furnishing any such nonpublic information to such party, shall not prohibit the Company furnishes such nonpublic from providing information to Parent (to the extent such nonpublic information has not been previously furnished by which the Company is required to Parentprovide pursuant to Sections 6.7(a) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Company6.7(d).
Appears in 1 contract
Sources: Merger Agreement (China Security & Surveillance Technology, Inc.)
No Solicitation. (a) Subject The Company and its controlled Affiliates shall, and the Company shall instruct its Representatives to, immediately cease any discussions or negotiations with any Person that may be ongoing with respect to the provisions of Section 5.2(c), from a Company Acquisition Proposal. From and after the date of this Agreement until the earlier to occur of the Effective Time or the termination of this Agreement pursuant to in accordance with Article VII10, neither the Company and nor any of its subsidiaries will not, Subsidiaries nor will they authorize or permit any of their respective officersofficers or directors shall, directors, affiliates or employees or any investment banker, attorney or and the Company shall instruct its and its Subsidiaries’ Affiliates and other advisor or representative retained by any of them Representatives not to, directly or indirectly, (i) solicit, initiate, initiate or knowingly encourage or induce the making, submission or announcement (including by way of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any person furnishing any non-public information with respect toinformation), or knowingly take any other action designed to facilitate facilitate, any inquiries inquiry or the making or submission of any proposal that constitutes inquiry, proposal, indication of interest or may offer which constitutes, or would reasonably be expected to lead to, any a Company Acquisition Proposal, (ii) subject to Section 8.03(b), approve or recommend, or propose to approve or recommend, a Company Acquisition Proposal, (iii) engage in discussions with any person with respect subject to any Acquisition ProposalSection 8.03(b), except as approve or recommend, or propose to the existence of these provisionsapprove or recommend, (iv) approve, endorse or recommend any Acquisition Proposal execute or (v) enter into any letter of intent or similar document or any contractintent, memorandum of understanding, merger agreement or commitment contemplating other agreement, arrangement or understanding relating to a Company Acquisition Proposal (other than an Acceptable Confidentiality Agreement) or a Superior Proposal (each an “Alternative Acquisition Agreement”), (iv) enter into, continue or otherwise relating participate in any discussions or negotiations regarding any Company Acquisition Proposal, or (v) publicly announce an intention to do any Acquisition Transactionof the foregoing; provided, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors of if, prior to obtaining the Company from (i) in response to an unsolicitedStockholder Approval, following the receipt of a bona fide written Company Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Company Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes determines in good faith, after consultation with its the Company’s outside financial advisors and outside legal counsel, is or could reasonably be expected to lead to a Superior Proposal and that its fiduciary obligations under applicable law require it was unsolicited and made after the date of this Agreement in circumstances not otherwise involving a breach of this Agreement, the Company may, in response to do sosuch Company Acquisition Proposal and subject to compliance with Section 8.03(b), furnish information with respect to the Company to the Person making such Company Acquisition Proposal and engage in discussions or negotiations with such Person regarding such Company Acquisition Proposal; provided, that (BA) (x) concurrently with furnishing prior to furnishing, or causing to be furnished, any such nonpublic information to, or written questions relating to the Company to such partyPerson, the Company gives enters into a confidentiality agreement with the Person making such Company Acquisition Proposal (an “Acceptable Confidentiality Agreement”) that (x) does not contain any provision that would prevent the Company from complying with its obligation to provide any disclosure to Parent written notice of the Company's intention required pursuant to furnish nonpublic information, or written questions to such party this Section 8.03 and (y) contains confidentiality provisions that in the Company receives from aggregate are no less restrictive on such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms Person than those contained in the Confidentiality AgreementAgreement as in effect immediately prior to the execution of this Agreement (it being understood that an Acceptable Confidentiality Agreement need not contain any standstill or non-solicitation provision), and (CB) contemporaneously with promptly (but in any event within twenty-four (24) hours) following furnishing any such nonpublic information to such partyPerson, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously so furnished by to Parent or its Representatives).
(b) Except as permitted pursuant to this Section 8.03(b) or Section 8.03(c), the Company to ParentBoard shall not (i) and effect a Company Adverse Recommendation Change or (ii) cause or permit the Company or any of its Subsidiaries to enter into any Alternative Acquisition Agreement. Notwithstanding anything to the contrary in response to an unsolicitedthis Agreement, bona fide if (A) a written Company Acquisition Proposal that constitutes was not solicited in violation of this Agreement is made to the Company by a Superior Offer, engaging in negotiations with the party making Third Party and such Company Acquisition Proposal to the extent that is not withdrawn and (AB) the Company Board of Directors of the Company concludes in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes a Superior Proposal, then prior to receipt of the Company Stockholder Approval, and subject to compliance with this Section 8.03(b), the Company Board may (x) effect a Company Adverse Recommendation Change or (y) cause the Company to terminate this Agreement in accordance with the procedures set forth in Section 10.01(d)(ii) if the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change or cause the Company to terminate this Agreement in accordance with the procedures set forth in Section 10.1(d)(ii) would be reasonably likely to be inconsistent with its fiduciary duties under applicable Laws; provided, however, that, prior to making any Company Adverse Recommendation Change or terminating this Agreement:
(i) the Company Board shall provide Parent at least four (4) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to the Superior Proposal that is specified in this Section 8.03(b) and the material terms and conditions thereof (including the identity of the Third Party making the Superior Proposal, as well as a complete copy of the Superior Proposal that is the basis of such action);
(ii) during the four (4) Business Days following such written notice (or such shorter period as is specified below), the Company Board and its Representatives shall negotiate in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of the transactions contemplated hereby proposed by Parent in response to such Superior Proposal; and
(iii) at the end of such four (4) Business Days, the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed in writing by Parent), that the Company Acquisition Proposal continues to be a Superior Proposal and that the failure to make such Company Adverse Recommendation Change or cause the Company to terminate this Agreement in accordance with the procedures set forth inSection 10.1(d)(ii) would still be reasonably likely to be inconsistent with its fiduciary duties under applicable Laws. Any material amendment or modification to any Superior Proposal (including any change to the financial terms thereof) will be deemed to be a new Company Acquisition Proposal for purposes of this Section 8.03, and the Company shall promptly (and in any event within 24 hours of occurrence) notify Parent of any such new Company Acquisition Proposal and the Parties shall comply with the provisions of this Section 8.03(b) with respect thereto, but with references therein to “4 Business Days” deemed to be references to “3 Business Days”; provided, that in the event there is a Company Adverse Recommendation Change made in compliance with this Section 8.03(b) with respect to a Superior Proposal, the Company shall only enter into an Alternative Acquisition Agreement with respect thereto by terminating this Agreement in accordance with Section 10.01(d)(ii).
(c) Notwithstanding anything to the contrary in this Agreement, following the occurrence of an Intervening Event, if the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the failure to make a Company Adverse Recommendation Change in response to such Intervening Event would reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable Laws, then prior to receipt of the Company Stockholder Approval, and subject to compliance with this Section 8.03(c), the Company Board may effect a Company Adverse Recommendation Change; provided, however, that, prior to making any Company Adverse Recommendation Change:
(i) the Company Board shall provide Parent at least four (4) Business Days’ prior written notice of its intention to take such action, which notice shall include the reasons underlying the Board’s decision to make a Company Adverse Recommendation Change, including a description of the Intervening Event that is the basis of such action;
(ii) during the four (4) Business Days following such written notice, the Company Board and its Representatives shall negotiate in good faith with Parent (to the extent Parent desires to negotiate) regarding any revisions to the terms of the transactions contemplated hereby proposed by Parent in response to such Intervening Event; and
(iii) at the end of such four (4) Business Days, the Company Board concludes in good faith, after consultation with the Company’s outside legal counsel, that the Intervening Event continues to warrant an Adverse Recommendation Change and that the failure to make a Company Adverse Recommendation Change would still reasonably be expected to be inconsistent with its fiduciary duties under applicable Laws (after taking into account any revisions to this Agreement made or irrevocably committed to in writing by Parent during such four (4) Business Days if such revisions were to be given effect).
(d) In addition to the obligations of the Company and Parent set forth in Section 8.03(a), Section 8.03(b) and Section 8.03(c), the Company shall (i) promptly (and in any event within 48 hours) notify Parent orally and in writing of any proposal, indication of interest or offer which constitutes a Company Acquisition Proposal that are received by, or any discussions or negotiations are sought to be initiated regarding a Company Acquisition Proposal with, the Company (or any of its Representatives), indicating, in connection with such notice, the identity of the Person or group of Persons making the proposal, indication of interest or offer and the material terms and conditions of any such proposal, indication of interest or offer (including, if applicable, copies of any written proposals or offers, including proposed agreements), (ii) keep Parent reasonably informed, on a reasonably prompt basis (and in any event within 48 hours) of the status of any discussions or negotiations with respect to any such proposals or offers and the details of any material changes to the status or material terms of any such proposal, indication of interest or offer (including any material amendments thereto or any change to the scope or material terms or conditions thereof, and including copies of definitive agreements) and (iii) indicate to Parent promptly (and in any event within 48 hours) whether the Company has furnished nonpublic information to such Person or group of Persons.
(e) Nothing contained in this Section 8.03 or Section 8.04 shall prohibit the Company Board from (i) disclosing to their stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the 1934 Act or from making 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 the Company’s outside counsel, that its the failure to make such disclosure would reasonably be likely to be inconsistent with the directors’ exercise of theirs fiduciary obligations to the Company’s stockholders under applicable law require it to do soLaws; provided, (B) (x) concurrently with entering into negotiations with such partyhowever, that in no event shall the Company gives Parent written notice Board effect a Company Adverse Recommendation Change except in accordance with the provisions of the Company's intention to enter into negotiations with such party and this Section 8.03.
(yf) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood agreed that any violation of the restrictions set forth in the preceding two sentences this Section 8.03 by any officer, director Representative or employee controlled Affiliate of the Company acting on behalf of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries Affiliates shall be deemed to be a breach of this Section 5.4 8.03 by the Company.
Appears in 1 contract
No Solicitation. (a) Subject The Company, the Company Subsidiaries and their respective officers, directors or employees, or investment bankers, attorneys, accountants or other advisors, agents or representatives (collectively, “Representatives”) immediately shall cease and cause to the provisions be terminated any activities, discussions or negotiations existing as of Section 5.2(c), from and after the date of this Agreement until with respect to any Company Takeover Proposal (as defined in Section 5.02(e)) and, to the Effective Time extent permitted by the applicable confidentiality or termination of this Agreement pursuant similar agreement governing such activities, discussions or negotiations, require any third parties to Article VIIsuch activities, discussions or negotiations to return to the Company and its subsidiaries will or to destroy all confidential information of the Company or any Company Subsidiary. The Company shall not, nor will they shall it authorize or permit any Company Subsidiary to, nor shall it authorize or permit any Representatives of their respective officers, directors, affiliates or employees the Company or any investment banker, attorney or other advisor or representative retained by any of them Company Subsidiary to, directly or indirectly, (i) directly or indirectly solicit, initiateinitiate or encourage (including by way of furnishing information) the submission of, encourage or induce take any other action designed to facilitate, any inquiries or the making, submission or announcement making of any Acquisition Proposal (as hereinafter defined)proposal that constitutes or is reasonably expected to lead to any Company Takeover Proposal, (ii) enter into any Company Acquisition Agreement (as defined in Section 5.02(b)) with respect to any Company Takeover Proposal or (iii) directly or indirectly participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes constitutes, or may reasonably be expected to lead to, any Acquisition Company Takeover Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors prior to receipt of the Company from Shareholder Approval (i) in response to an unsolicitedthe “Company Applicable Period”), bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offermay, to the extent that (A) required by the Board of Directors fiduciary obligations of the Company concludes Board to the shareholders of the Company under applicable Law, as determined in good faith by a majority of the members of the Company Board after consultation with the Company’s outside counsel, in response to a bona fide written Company Takeover Proposal that is made by a person that the Company Board determines, in good faith, after consultation with the Company’s outside counsel and financial advisors, constitutes or is reasonably expected to result in a Superior Company Proposal that was not solicited by the Company or its outside counselRepresentatives and that did not otherwise result from a breach or a deemed breach of this Section 5.02(a), that its fiduciary obligations under applicable law require it and subject to do socompliance with Section 5.02(c), (B) (x) concurrently furnish information with furnishing any such nonpublic information to, or written questions respect to such party, the Company gives Parent written notice to the person making such Company Takeover Proposal pursuant to a confidentiality and standstill agreement not less restrictive of the Company's intention to furnish nonpublic information, or written questions to other party than the Confidentiality Agreement (as defined in Section 6.02); provided that such confidentiality and standstill agreement may allow such party to submit to the Company a non-public proposal or offer relating to a Company Takeover Proposal; and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained participate in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations discussions with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company person and its subsidiaries will immediately cease Representatives regarding any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Company Takeover Proposal. Without limiting the foregoing, it is understood agreed that any violation of the restrictions set forth in the preceding two sentences sentence by any officer, director Representative or employee affiliate of the Company or any of its subsidiaries Company Subsidiary, whether or any investment banker, attorney or other advisor or representative not such person is purporting to act on behalf of the Company or any of its subsidiaries Company Subsidiary or otherwise, shall be deemed to be a breach of this Section 5.4 5.02(a) by the Company including for all purposes of this Section 5.02(a), Section 5.02(b), Section 8.01(c) and Section 8.05(b); provided that the Company shall not be liable for any monetary damage on account of such deemed breach (for the avoidance of doubt, other than any fee due pursuant to Section 6.07(b)) so long as the Company or any Company Subsidiary did not authorize or permit such violation.
(b) Except as contemplated by this Section 5.02, neither the Company Board nor any committee thereof shall (i) (A) recommend the approval or adoption of any Company Takeover Proposal, (B) withdraw or modify, in a manner adverse to Parent, the recommendation to the Company’s shareholders by the Company Board or such committee of this Agreement, the Merger or any other Transactions, (C) recommend that the shareholders of the Company reject this Agreement or (D) resolve, agree or propose publicly to take any of the actions set forth in clauses (A) through (C) above (each such action set forth in this Section 5.02(b)(i) being referred to herein as a “Company Adverse Recommendation Change”), (ii) approve or adopt, or resolve, agree or propose publicly to approve or adopt, any Company Takeover Proposal, (iii) withdraw or modify, or resolve, agree or propose publicly to withdraw or modify, in a manner adverse to Parent, the approval or adoption by the Company Board or such committee of this Agreement, the Merger or any other Transactions, (iv) determine that this Agreement or the Merger is no longer advisable to the extent such determination is necessary in order to validly submit the Agreement to the Company’s shareholders at the Company Shareholders Meeting or (v) cause or permit the Company to enter into any letter of intent, agreement in principle, acquisition agreement, joint venture agreement, partnership agreement or any other agreement (each, a “Company Acquisition Agreement”) related to any Company Takeover Proposal (other than a confidentiality and standstill agreement referred to in, and in accordance with, Section 5.02(a)), or resolve, agree or propose publicly to take any such actions. Notwithstanding the foregoing, during the Company Applicable Period, the Company Board may make a Company Adverse Recommendation Change, if (x) a majority of the members of the Company Board determines in good faith, after consulting with the Company’s outside counsel and financial advisors, that the failure to take such action would reasonably be likely to result in a breach of the fiduciary obligations of the Company Board to the shareholders of the Company under applicable Law, and (y)
(1) the Company Board has provided to Parent five business days’ prior written notice of its intent to effect a Company Adverse Recommendation Change (which notice shall include the reasonable details regarding the cause for, and nature of, the Company Adverse Recommendation Change) and, if requested by Parent, negotiated in good faith with Parent during such five business day period regarding revisions to this Agreement that would avoid such Company Adverse Recommendation Change and (2) the Company Board has provided to Parent advance written notice of such Company Adverse Recommendation Change immediately prior thereto.
(c) The Company promptly (but in any event within 24 hours of such request for information or receipt of such Company Takeover Proposal) shall advise Parent orally and in writing of any Company Takeover Proposal or any inquiry with respect to or that could lead to any Company Takeover Proposal, the identity of the person making any such Company Takeover Proposal or inquiry and the principal terms and conditions of any such Company Takeover Proposal or inquiry. The Company shall (i) keep Parent fully informed of the status including any change or proposed change to the terms of any such Company Takeover Proposal or inquiry, (ii) provide to Parent as soon as practicable after receipt or delivery thereof with copies of all correspondence and other written material sent or provided to the Company from any third party in connection with any Company Takeover Proposal or sent or provided by the Company to any third party in connection with any Company Takeover Proposal and (iii) provide Parent with advance written notice of any scheduled meeting of the Company Board to discuss a Company Takeover Proposal.
(d) Nothing contained in this Section 5.02 shall prohibit the Company from taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any required disclosure to the Company’s shareholders if, in the good faith judgment of the Company Board, after consultation with outside counsel, failure so to disclose would be inconsistent with its obligations under applicable Law.
(e) For purposes of this Agreement:
Appears in 1 contract
No Solicitation. (a) Subject Prior to the provisions Effective Time, ▇▇▇▇▇▇▇ --------------- agrees that neither it, any of Section 5.2(c), from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company and its subsidiaries will notSubsidiaries, nor will they authorize or permit any of their respective directors, officers, directorsemployees, affiliates agents or employees or any investment bankerrepresentatives of the foregoing, attorney or other advisor or representative retained by any of them towill, directly or indirectly, (i) solicit, initiate, encourage solicit or induce the making, submission initiate (including by way of furnishing or announcement of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any person any disclosing non-public information with respect to, or take any other action to facilitate information) any inquiries or the making of any proposal that constitutes with respect to any merger, consolidation or other business combination involving ▇▇▇▇▇▇▇ or the acquisition of all or any significant part of the assets or capital stock of ▇▇▇▇▇▇▇ (a "▇▇▇▇▇▇▇ Acquisition Transaction") ------------------------------- or (ii) negotiate, explore or otherwise engage in discussions with any person (other than Shire and its representatives) with respect to any ▇▇▇▇▇▇▇ Acquisition Transaction, or which may reasonably be expected to lead toto a proposal for a ▇▇▇▇▇▇▇ Acquisition Transaction or enter into any agreement, any Acquisition Proposal, (iii) engage in discussions with any person arrangement or understanding with respect to any such ▇▇▇▇▇▇▇ Acquisition ProposalTransaction or which would require it to abandon, except as terminate or fail to consummate the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document Merger or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transactionother transaction contemplated by this Agreement; provided, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors of the Company from (i) ▇▇▇▇▇▇▇ may, in response to an unsolicited, bona fide unsolicited written Acquisition Proposal -------- ------- proposal from a reputable and responsible third party for regarding a Company Acquisition that ▇▇▇▇▇▇▇ Superior Proposal (as hereinafter defined), furnish information to, negotiate or otherwise engage in discussions with such third party, if the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes ▇▇▇▇▇▇▇ determines in good faith, after consultation with its financial advisors and based upon advice of outside counsel, counsel that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) action is required for the Board of Directors to comply with its fiduciary duties under applicable law.
(b) Except as may be required pursuant to the fiduciary duties of ▇▇▇▇▇▇▇' Board of Directors under applicable law, ▇▇▇▇▇▇▇ agrees that, as of the Company concludes in good faithdate hereof, after consultation with it and its outside counselSubsidiaries, that its fiduciary obligations under applicable law require it to do soand the respective directors, (B) (x) concurrently with entering into negotiations with such partyofficers, the Company gives Parent written notice employees, agents and representatives of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Companyforegoing, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will shall immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any parties person (other than Shire and its representatives) conducted heretofore with respect to any ▇▇▇▇▇▇▇ Acquisition ProposalTransaction. Without limiting ▇▇▇▇▇▇▇ agrees to promptly advise Shire of any inquiries or proposals received by, any such information requested from, or any negotiations or discussions sought to be initiated or continued with, ▇▇▇▇▇▇▇ or its Subsidiaries, or any of the respective directors, officers, employees, agents or representatives of the foregoing, it is understood that in each case from a person (other than Shire and its representatives) with respect to a ▇▇▇▇▇▇▇ Acquisition Transaction, and the terms hereof, including the identity of such third party and the general terms of any violation financing arrangement or commitment in connection with such ▇▇▇▇▇▇▇ Acquisition Transaction, and, except as may otherwise be required pursuant to the fiduciary duties of ▇▇▇▇▇▇▇' Board of Directors under applicable law, to update on an ongoing basis or upon Shire's reasonable request, the restrictions set forth in the preceding two sentences status thereof, as well as any actions taken or other developments pursuant to this Section 4.6. As used herein, "▇▇▇▇▇▇▇ Superior ---------------- Proposal" means a bona fide, written and unsolicited proposal or offer made by -------- any officer, director persons (or employee of the Company group) (other than Shire or any of its subsidiaries or any investment bankerSubsidiaries) with respect to a ▇▇▇▇▇▇▇ Acquisition Transaction (i) on terms which the Board of Directors of ▇▇▇▇▇▇▇ determines in good faith, attorney or other advisor or representative and in the exercise of reasonable judgment (based on the Company or any advice of its subsidiaries shall be deemed independent financial advisors and legal counsel), to be a breach of this Section 5.4 by more favorable to ▇▇▇▇▇▇▇ and its shareholders than the Companytransactions contemplated hereby (including taking into account the financing thereof.)
Appears in 1 contract
No Solicitation. (a) The Company and its Subsidiaries shall immediately cease any and all existing discussions or negotiations with any Persons conducted heretofore with respect to any Acquisition Proposal and terminate such Persons’ access to any data room containing the Company’s confidential information, and shall as promptly as practicable (and in any event within three (3) Business Days) request the return from all such Persons or the destruction by such Persons of all copies of confidential information previously provided to such Persons by the Company, its Subsidiaries or Representatives.
(b) Subject to the provisions of Section 5.2(c), from at all times during the period commencing with the execution and after the date delivery of this Agreement and continuing until the Effective Time or earlier to occur of (A) the termination of this Agreement pursuant to Article VIIVIII and (B) the Effective Time, the Company and its subsidiaries will Subsidiaries shall not, nor will shall they authorize or knowingly permit any of their respective officers, directors, affiliates officers or employees other employees, controlled affiliates, or any investment banker, attorney attorney, accountant or other advisor authorized agent or representative retained by any of them (collectively, “Representatives”) to, directly or indirectly, (i) solicit, initiate, encourage initiate or induce the making, submission or announcement of any of, or knowingly encourage, facilitate or assist, an Acquisition Proposal (as hereinafter defined)Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any person Person (other than Parent, Acquisition Sub or any designees of Parent or Acquisition Sub) any non-public information with respect torelating to the Company or any of its Subsidiaries, or take afford to any Person (other action than Parent, Acquisition Sub or any designees of Parent or Acquisition Sub) access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its Subsidiaries, in any such case with the intent to induce the making, submission or announcement of, or the intent to encourage, facilitate or assist, an Acquisition Proposal or any inquiries or the making of any proposal that constitutes or may would reasonably be expected to lead to, any to an Acquisition Proposal, (iii) participate or engage in discussions or negotiations with any person Person with respect to any an Acquisition Proposal, except as to the existence of these provisions, or (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment Contract contemplating or otherwise relating to any an Acquisition Transaction; provided, however, that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors of the Company from Transaction (i) in response to other than an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with furnishing any such nonpublic information to, or written questions to such party, the Company gives Parent written notice of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Acceptable Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the Company).
Appears in 1 contract
No Solicitation. (a) Subject Prior to the provisions of Section 5.2(c), from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VIIClosing Date, the Company and its subsidiaries will agrees that it shall not, nor will they authorize or permit any of their respective and it shall cause its directors, officers, directorsemployees, affiliates agents or employees or any investment banker, attorney or other advisor or representative retained by any of them representatives not to, directly or indirectly, (i) solicit, initiate, encourage solicit or induce the making, submission initiate (including by way of furnishing or announcement of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any person any disclosing non-public information with respect to, or take any other action to facilitate information) any inquiries or the making of any proposal that constitutes with respect to any merger, consolidation or other business combination involving the Company of the Company or the acquisition of all or any significant part of the assets or capital stock of the Company (an "Acquisition Transaction") or (ii) negotiate, explore or otherwise engage in discussions with any person (other than ConAgra and its representatives) with respect to any Acquisition Transaction, or which may reasonably be expected to lead toto a proposal for an Acquisition Transaction or enter into any agreement, any Acquisition Proposal, (iii) engage in discussions with any person arrangement or understanding with respect to any such Acquisition ProposalTransaction or which would require it to abandon, except as terminate or fail to consummate the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, transactions contemplated by this Agreement. Provided that nothing contained in this Section 5.4 shall prohibit the ----------------- Board of Directors of the Company from (i) may, in response to an unsolicited, bona fide unsolicited written proposal with respect to an Acquisition Proposal Transaction from a reputable and responsible financially capable third party, (i) furnish or disclose non-public information to such third party for a Company Acquisition that and (ii) negotiate, explore or otherwise communicate with such third party, in each case only if the Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes determines in good faithfaith by a majority vote, after consultation with its legal and financial advisors, and after receipt of the written opinion of outside counsellegal counsel of such party that failing to take such action would constitute a breach of the fiduciary duties of such Board of Directors, that its taking such action is reasonably likely to lead to an Acquisition Transaction that is more favorable to the stockholders of the Company than the transaction which is the subject matter of this Agreement and that failing to take such action would constitute a breach of such Board of Directors' fiduciary obligations under applicable law require it duties. The Company shall immediately advise ConAgra of the receipt of any inquiries or proposals relating to do sosuch Acquisition Transaction. If, (B) (x) concurrently with furnishing any such nonpublic information toprior to the termination of this Agreement, an Acquisition Transaction is proposed, or written questions to such partythe Company takes any of the actions described in subparts (i) or (ii) above, and if this Agreement is terminated (other than as a result of a breach hereof by ConAgra), the Company gives Parent written notice shall, within three (3) business days following such termination, pay to ConAgra $120,000 by wire transfer of the Company's intention to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response immediately available funds to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that its fiduciary obligations under applicable law require it to do so, (B) (x) concurrently with entering into negotiations with such party, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences account designated by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach of this Section 5.4 by the CompanyConAgra.
Appears in 1 contract
Sources: Asset Purchase Agreement (Original Italian Pasta Products Co Inc)
No Solicitation. (a) Subject The Company shall not, and shall cause its Subsidiaries not to, and shall use reasonable best efforts to the provisions of Section 5.2(c), from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VII, the Company cause its and its subsidiaries will not, nor will they authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them Subsidiaries’ Representatives not to, directly or indirectly, (i) solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal (as hereinafter defined), (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or knowingly take any other action to facilitate the submission of any inquiries Takeover Proposal or the making of any proposal that constitutes or may could reasonably be expected to lead to any Takeover Proposal, or, subject to Section 7.10(b): (i) conduct or engage 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, books, or records of the Company or any of its Subsidiaries to, or knowingly assist, participate in, facilitate, or encourage any effort by, any third party that is seeking to make, or has made, any Takeover Proposal; or (ii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other contract relating to any Takeover Proposal (each, a “Company Acquisition ProposalAgreement”). Except as expressly permitted by this Section 7.10(a), (iii) engage in discussions the Company Board shall not effect a Company Adverse Recommendation Change. The Company shall, and shall cause its Subsidiaries to cease immediately and cause to be terminated, and shall not authorize or knowingly permit any of its or their Representatives to continue, any and all existing activities, discussions, or negotiations, if any, with any person third party conducted prior to the date hereof with respect to any Acquisition Proposal, except as Takeover Proposal and shall use its commercially reasonable efforts to the existence cause any such third party (or its agents or advisors) in possession of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; provided, however, that nothing contained non-public information in this Section 5.4 shall prohibit the ----------------- Board of Directors respect of the Company from or any of its Subsidiaries that was furnished by or on behalf of the Company and its Subsidiaries to return or destroy (and confirm destruction of) all such information. The Company will be liable for any breach of this Section 7.10(a) by its Representative.
(b) Notwithstanding Section 7.10(a), prior to the receipt of the Company Shareholder Approval , the Company Board, directly or indirectly through any Representative, may, subject to Section 7.10(c) and Section 7.10(d): (i) participate in response to an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible negotiations or discussions with any third party for that has made (and not withdrawn) a Company Acquisition bona fide, unsolicited Takeover Proposal in writing that the Company Board of Directors of the Company has reasonably concluded (based on, among other things, the advice of a financial advisor of nationally recognized reputation), is reasonably expected to lead to a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose of which is to elicit clarifications as to the material terms of such Acquisition Proposal so as to enable the Board of Directors of the Company to make a determination whether to construe such Acquisition Proposal as a Superior Offer, to the extent that (A) the Board of Directors of the Company concludes believes in good faith, after consultation with outside legal counsel and its outside counselother professional advisors (and, that its fiduciary obligations under applicable law require it if necessary, contact with such third party to do soclarify the terms and conditions of such Takeover Proposal), constitutes or would reasonably be expected to result in a Superior Proposal; (Bii) (x) concurrently with furnishing any such nonpublic information to, or written questions thereafter furnish to such party, third party non-public information relating to the Company gives Parent written notice or any of the Company's intention its Subsidiaries pursuant to furnish nonpublic information, or written questions to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations agreement; (iii) following receipt of and on account of a Superior Proposal, make a Company Adverse Recommendation Change; and (iv) take any action that any court of competent jurisdiction orders the use Company to take (which order remains unstayed). Nothing contained herein shall (i) prevent the Company Board from disclosing to the Company’s stockholders a position contemplated by Rule 14d-9 and disclosure of all nonpublic written Rule 14e-2(a) promulgated under the Exchange Act; (ii) making any “stop, look and oral information furnished listen” communication to such party on behalf the stockholders of the Company, Company pursuant to Rule 14d‑9(f) under the terms Exchange Act or (iii) making any disclosures to the stockholders of which are at least as restrictive as the terms contained in the Confidentiality Agreement, and (C) contemporaneously with furnishing any such nonpublic information to such party, the Company furnishes such nonpublic information to Parent (with regard to the extent such nonpublic information has not been previously furnished transactions contemplated by this Agreement or any Takeover Proposal required by Law.
(c) The Company shall notify Parent promptly (but in no event later than 48 hours) after receipt by the Company (or any of its Representatives) of any Takeover Proposal, any inquiry that could reasonably be expected to Parent) and (ii) in response lead to an unsoliciteda Takeover Proposal, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal any request for non-public information relating to the extent that (A) Company or any of its Subsidiaries or for access to the Board of Directors of the Company concludes in good faithbusiness, after consultation with its outside counselproperties, that its fiduciary obligations under applicable law require it to do soassets, (B) (x) concurrently with entering into negotiations with such partybooks, the Company gives Parent written notice of the Company's intention to enter into negotiations with such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee records of the Company or any of its subsidiaries Subsidiaries by any third party. In such notice, the Company shall identify the third party making, and details of the material terms and conditions of, any such Takeover Proposal, indication or request. The Company shall keep Parent reasonably informed of material developments affecting the status and material terms of any investment bankersuch Takeover Proposal, attorney indication or other advisor request. The Company shall promptly provide Parent with a list of any non-public information concerning the Company’s and any of its Subsidiary’s business, present or representative future performance, financial condition, or results of operations, provided to any third party, and, to the extent such information has not been previously provided to Parent, copies of such information.
(d) Except as expressly permitted by this Section 7.10, the Company Board shall not effect a Company Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement. Notwithstanding the foregoing, at any time prior to the receipt of the Company Shareholder Approval, the Company Board may effect a Company Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement, if: (i) the Company promptly notifies Parent, in writing, at least two (2) Business Days (the “Superior Proposal Notice Period”) before making a Company Adverse Recommendation Change or entering into (or causing a Subsidiary to enter into) a Company Acquisition Agreement, of its subsidiaries intention to take such action with respect to a Superior Proposal, which notice shall be deemed state expressly that the Company has received a Takeover Proposal, that the Company Board intends to be declare a breach Superior Proposal and that the Company Board intends to effect a Company Adverse Recommendation Change and/or the Company intends to enter into a Company Acquisition Agreement; (ii) the Company includes in such notice a description in reasonable detail of such Superior Proposal and the identity of the third party making such Superior Proposal; (iii) the Company shall, and shall cause its Representatives to, during the Superior Proposal Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of this Section 5.4 Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments; and (iv) the Company Board determines in good faith, after consulting with outside legal counsel and its other professional advisors, that such Takeover Proposal continues to constitute a Superior Proposal after taking into account any adjustments made by Parent during the CompanySuperior Proposal Notice Period in the terms and conditions of this Agreement.
(e) Notwithstanding anything to the contrary in the foregoing, the Company Board may effect a Company Adverse Recommendation Change, after the date of this Agreement but prior to the receipt of the Company Shareholder Approval, if: (i) prior to effecting the Company Adverse Recommendation Change, the Company Board determines in good faith, after consulting with outside legal counsel and its other professional advisors, that the failure to effect such Company Adverse Recommendation Change, would be reasonably likely to result in a violation of its fiduciary duties under applicable Law, (ii) the Company Board shall notify Parent, in writing, at least five (5) Business Days before taking such action of its intention to take such action and a reasonable description of the event or circumstances giving rise to its determination and (iii) at the end of such notice period, the Company Board takes into account any amendment or modification to this Agreement proposed by Parent and determines in good faith, after consulting with outside legal counsel and its other professional advisors, that the failure to effect such Company Adverse Recommendation Change, would, nevertheless, be reasonably likely to result in a violation of its fiduciary duties under applicable Law.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Flyexclusive Inc.)
No Solicitation. (a) Subject Except as expressly permitted by this Section 5.02, the Company shall, and shall cause the Company Subsidiaries to, and shall instruct (and use its reasonable best efforts to cause) the provisions Representatives of Section 5.2(c)the Company to, from immediately cease and after cause to be terminated any solicitation, discussions or negotiations with any person that may be ongoing with respect to any Acquisition Proposal or any inquiry, expression of interest, proposal, discussion, negotiations or offer that would reasonably be expected to lead to an Acquisition Proposal (other than to inform any such person of the date existence of this Agreement until and the Effective Time Company’s obligations under this Section 5.02), and, within two (2) Business Days after the Agreement Date, shall request the prompt return or termination destruction of this all confidential information of the Company previously furnished to any such person that executed a confidentiality agreement with the Company since the date that is twelve (12) months prior to the Agreement pursuant Date in connection with its consideration of an Acquisition Proposal and within one (1) Business Day terminate all access to Article VIIany physical and electronic data room containing confidential information of the Company granted to any such person, its Affiliates or Representatives in connection with its consideration of an Acquisition Proposal. During the Pre-Closing Period, except as expressly provided in Section 5.02(b), the Company and its subsidiaries will shall not, nor will they authorize and shall cause each of the Company Subsidiaries not to, terminate, waive, amend or permit modify any provision of any existing standstill or confidentiality agreement to which it or any of their respective the Company Subsidiaries is a party.
(b) Except as expressly permitted by this Section 5.02, during the Pre-Closing Period, the Company agrees that it shall not and shall cause each Company Subsidiary and any of the officers, directors, affiliates directors or employees of it or any investment bankerCompany Subsidiary not to, attorney or and shall instruct the other advisor or representative retained by any Representatives of them the Company not to, directly or indirectly, (i) solicit, initiate, knowingly facilitate or knowingly encourage any inquiries or induce the making, implementation or submission or announcement of any Acquisition Proposal (as hereinafter defined)Proposal, or any proposals or offers that would be reasonably expected to lead to, an Acquisition Proposal, (ii) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any person any non-public information in connection with, any inquiries, proposals or offers that constitute, or would be reasonably expected to lead to, an Acquisition Proposal except to notify such person of the existence of this Agreement and the Company’s obligations under this Section 5.02(b) and to clarify and understand the terms and conditions of any such Acquisition Proposal, or (iii) execute or enter into any Acquisition Agreement; provided that, notwithstanding the foregoing, the Company may grant a waiver, amendment or release under any confidentiality or standstill agreement, solely to the extent necessary to allow a confidential Acquisition Proposal to be made to the Company or the Company Board (or any committee thereof) so long as (A) the Company Board has determined in good faith (after consultation with respect outside legal counsel) that the failure to grant such waiver, amendment or release would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law and (B) the Company promptly (and in any event within one (1) Business Day of the determination of the Company Board as required by the foregoing subclause (A) of this Section 5.02(b)) notifies Parent of any such waiver, amendment or release; provided further that, prior to the Acceptance Time, nothing contained in this Section 5.02 shall prevent the Company or the Company Board (or any committee thereof) from furnishing information (including non-public information) to, or engaging in negotiations or discussions with, any person that has made a bona fide Acquisition Proposal, which Acquisition Proposal did not result from a material breach of this Section 5.02, if, and only if, prior to taking such action, (1) the Company Board (x) determines in good faith (after consultation with its outside legal counsel) that such Acquisition Proposal is, or would reasonably be expected to result in, a Superior Proposal and (y) determines in good faith (after consultation with its outside legal counsel) that its failure to take such actions would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law, (2) the Company provides written notice to Parent of the determination referenced in subclause (1) promptly (and in any other action event within one (1) Business Day of such determination), and (3) the Company receives or has received from such person an executed Acceptable Confidentiality Agreement. The Company shall deliver to facilitate any inquiries or the making Parent a copy of any proposal executed Acceptable Confidentiality Agreement promptly (and in any event within one (1) Business Day) following its execution. The Company shall provide to Parent any non-public information concerning the Company or any of the Company Subsidiaries provided by the Company or any Company Subsidiary to any person entering into an Acceptable Confidentiality Agreement pursuant to this Section 5.02(b) that constitutes has not been previously provided to Parent reasonably promptly after the time it is provided to such person (and in no event more than one (1) calendar day thereafter).
(c) The Company shall promptly upon receipt thereof (and in any event within one (1) Business Day) (i) provide Parent written notice of the receipt of (A) any Acquisition Proposal (including any material modification thereto) or may (B) any inquiries, proposals or offers that would reasonably be expected to lead to an Acquisition Proposal and (ii) disclose to Parent a copy of, any such Acquisition Proposal or any such inquiry, proposal or offer made in writing (or, if made orally, a reasonably detailed description of the material terms of such Acquisition Proposal, inquiry, proposal or proposal), provided that such disclosure to Parent may be redacted to the extent necessary to protect the confidential information regarding the business and operations of the person making such inquiry, proposal or offer so long as such redaction does not extend any material terms or conditions of such Acquisition Proposal or any such inquiry, proposal or offer. The Company will, promptly upon receipt thereof (and in any event within one (1) Business Day), provide Parent with copies of all drafts and final versions of definitive or other agreements including schedules and exhibits thereto (which may be redacted to the extent necessary to protect the confidential information regarding the business and operations of the person making such Acquisition Proposal, so long as such redaction does not extend to any material terms or conditions of such Acquisition Proposal) relating to such Acquisition Proposal, in each case exchanged between the Company or any of its Representatives, on the one hand, and the person making such Acquisition Proposal or any of its Representatives, on the other hand. The Company will keep Parent reasonably informed on a reasonably prompt basis (and in any event within one (1) Business Day of any material development) of the status and material terms (including with respect to any material changes in price, the amount and form of consideration or other material amendments) of any such Acquisition Proposal or other inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal. The Company shall promptly, and in any event within one (1) Business Day, following a determination by the Company Board (or any committee thereof) that an Acquisition Proposal is a Superior Proposal, notify Parent of such determination.
(d) Except as expressly set forth in Section 5.02(e), during the Pre-Closing Period, neither the Company nor the Company Board (or any committee thereof), as applicable, shall, and neither shall publicly propose to, (i) withhold, withdraw or qualify (or modify in a manner adverse to Parent or Purchaser) the Company Board Recommendation, (ii) approve, recommend, submit for a vote of the Company’s shareholders or otherwise declare advisable any Acquisition Proposal, (iii) engage in discussions with any person with respect to enter into any Acquisition Proposal, except as to the existence of these provisionsAgreement, (iv) approveif an Acquisition Proposal has been publicly disclosed (other than by the commencement of a tender offer or exchange offer), endorse or recommend refuse to affirm publicly the Company Board Recommendation following any reasonable written request by Parent to provide such reaffirmation within ten (10) Business Days after Parent’s written request therefor (provided that the Company shall not be required to make more than two (2) such reaffirmations), (v) refrain from recommending against any Acquisition Proposal that is a tender offer or exchange offer within ten (10) Business Days after the commencement thereof or (vvi) enter into authorize, commit, resolve or agree to take any letter of intent or similar document or such actions (any contractsuch action, agreement or commitment contemplating or otherwise relating to any Acquisition Transaction; providedother than those set forth in the preceding clause (iii), however, that nothing contained an “Adverse Recommendation Change”).
(e) Notwithstanding anything in this Section 5.4 shall prohibit Agreement to the ----------------- Board of Directors of contrary, prior to the Acceptance Time, the Company from Board (i) may effect an Adverse Recommendation Change or cause the Company to terminate this Agreement pursuant to Section 6.01(d)(i) in response order to enter into, or cause a Company Subsidiary to enter into, an Acquisition Agreement with respect to a Superior Proposal (so long as, prior to or concurrently with, and as a condition to the effectiveness of, such termination, the Company pays to Parent the Company Termination Fee in accordance with Section 6.03(b)), if the Company receives an unsolicited, bona fide written Acquisition Proposal from a reputable and responsible third party for a Company Acquisition that the Company Board of Directors of determines in good faith (after consultation with its outside legal counsel and outside financial advisor) is a Superior Proposal and determines in good faith (after consultation with its outside legal counsel) that its failure to take such actions would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law or (ii) may effect an Adverse Recommendation Change if an Intervening Event occurs and as a result thereof the Company Board determines in good faith (after consultation with its outside legal counsel) that the failure to effect an Adverse Recommendation Change would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law; provided that:
(i) prior to effecting such an Adverse Recommendation Change with respect to a Superior Proposal or terminating this Agreement pursuant to Section 6.01(d)(i), (A) the Company has reasonably concluded notified Parent in writing that it intends to effect an Adverse Recommendation Change (based on, among other things, the advice of a financial advisor of nationally recognized reputationwhich notice shall not constitute an Adverse Recommendation Change) or terminate this Agreement pursuant to Section 6.01(d)(i), is reasonably expected to lead to (B) the Company has provided Parent a Superior Offer, furnishing nonpublic information to the party making such Acquisition Proposal, and submitting to the party making such Acquisition Proposal written questions, the sole purpose summary of which is to elicit clarifications as to the material terms and conditions of such Acquisition Proposal consistent with the requirements set forth in Section 5.02(c), (C) if requested to do so as to enable by Parent, for a period of four (4) calendar days following delivery of such notice, the Board of Directors Company shall have discussed and negotiated in good faith, and shall have made the Representatives of the Company reasonably available to make discuss and negotiate in good faith, with Parent and its Representatives, any bona fide proposed modifications to the terms and conditions of this Agreement in such a determination whether manner that the Superior Proposal ceases to construe such Acquisition Proposal as constitute a Superior OfferProposal and (D) no earlier than the end of such four (4)-calendar-day period, to the extent that (A) the Board of Directors of the Company concludes Board (after consultation with its outside legal counsel and outside financial advisor), shall have determined in good faith, after consultation considering the terms of any proposed amendment or modification to this Agreement proposed by Parent during such four (4)-calendar-day period, that such Superior Proposal still constitutes a Superior Proposal and that the failure to make an Adverse Recommendation Change or terminate this Agreement pursuant to Section 6.01(d)(i) in connection therewith would still be reasonably likely to be inconsistent with its outside counsel, that its fiduciary obligations duties under applicable law Law (it being understood and agreed that any change to the financial or other material terms of a proposal that was previously the subject of a notice hereunder shall require a new notice to Parent as provided above, but with respect to any such subsequent notices references herein to a “four (4)-calendar-day period” shall be deemed to be references to a “two (2)-calendar-day period”); and
(ii) prior to effecting such an Adverse Recommendation Change with respect to an Intervening Event, (A) the Company has notified Parent in writing that it intends to do soeffect such an Adverse Recommendation Change, describing in reasonable detail the reasons for such Adverse Recommendation Change, (B) if requested to do so by Parent, for a period of four (x4) concurrently with furnishing any calendar days following delivery of such nonpublic information to, or written questions to such partynotice, the Company gives Parent written notice shall have discussed and negotiated in good faith, and shall have made the Representatives of the Company's intention Company reasonably available to furnish nonpublic informationdiscuss and negotiate in good faith, or written questions with Parent and its Representatives any bona fide proposed modifications to such party and (y) the Company receives from such party an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the Company, the terms and conditions of which are at least as restrictive as the terms contained in the Confidentiality Agreement, this Agreement and (C) contemporaneously with furnishing any no earlier than the end of such nonpublic information to such partyfour (4)-calendar-day period, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent) and (ii) in response to an unsolicited, bona fide written Acquisition Proposal that constitutes a Superior Offer, engaging in negotiations with the party making such Acquisition Proposal to the extent that (A) the Board of Directors of the Company concludes shall have determined in good faith, after considering the terms of any proposed amendment or modification to this Agreement proposed by Parent during such four (4)-calendar-day period, that the failure to effect an Adverse Recommendation Change would still be reasonably likely to be inconsistent with the Company Board’s fiduciary duties under applicable Law. Unless this Agreement shall have been validly terminated in accordance with Article VI, the occurrence of any Adverse Recommendation Change in respect of an Intervening Event shall not affect the obligations of the parties to continue to cooperate and implement the Transactions in accordance with, and subject to the terms and conditions of, this Agreement.
(f) Nothing contained in this Agreement shall prevent or prohibit the Company or the Company Board from issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) under the Exchange Act or complying with Rule 14d-9, Item 1012(a) of Regulation M-A promulgated under the Exchange Act and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal or from making any disclosure to the Company’s shareholders if the Company Board determines (after consultation with its outside legal counsel, ) that its failure to do so would be reasonably likely to be inconsistent with its fiduciary obligations duties under applicable law require it to do so, (B) (x) concurrently Law; provided that any such action that would otherwise constitute an Adverse Recommendation Change may only be made in accordance with entering into negotiations with such party, the Company gives Parent written notice of Section 5.02(e). A factually accurate public statement that describes the Company's intention to enter into negotiations ’s receipt of an Acquisition Proposal and the operation of this Agreement with such party and respect thereto (ywithout including a reaffirmation) the Company receives from such party shall not be deemed an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic written and oral information furnished to such party on behalf of the CompanyAdverse Recommendation Change.
(g) Except as set forth in Section 6.03(d), the terms of which are at least as restrictive as the terms contained in the Confidentiality Agreement. The Company and its subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any an Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its subsidiaries shall be deemed to be a breach for purposes of this Section 5.4 by the Company.Agreement:
Appears in 1 contract
Sources: Transaction Agreement (Merus N.V.)