No Solicitations. (a) During the period beginning on the date of this Agreement and continuing until 12:01 a.m. local Minneapolis, Minnesota time on the twenty-first (21st) calendar day after the date of this Agreement (the “Solicitation Period End Date”), the Company and its subsidiaries, and their respective officers, directors and employees, and any investment banker, financial advisor, attorney or other representative of them (such individuals, the “Representatives”) shall be permitted to, with respect to no more than eight (8) Persons (each such Person, an “Excluded Person”), solicit, engage in discussions or negotiate, or take any other action intended or designed to facilitate (including by way of furnishing information, subject to furnishing the same information to Parent, and subject also to execution of a customary confidentiality agreement, the benefits and terms of which, if more favorable than the confidentiality agreement in place with Parent, shall be extended to Parent) any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead to, any Takeover Proposal (as hereinafter defined). Subject to the preceding sentence and Section 5.1.8(b), until the earlier of the Effective Time or the date this Agreement is terminated pursuant to Section 7.1 hereof, the Company shall not, nor shall it authorize or permit any Company subsidiaries to, and the Company shall direct and use its reasonable best efforts to cause the Representatives of the Company or any Company subsidiary not to, directly or indirectly, (i) solicit, engage in discussions or negotiate, or take any other action intended or designed to facilitate (including by way of furnishing information) any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead to, any Takeover Proposal (as hereinafter defined) or (ii) enter into any agreement with respect to a Takeover Proposal. On the Solicitation Period End Date, the Company shall immediately terminate any pending discussions or negotiations regarding any Takeover Proposal (other than with Parent or Subsidiary or their respective affiliates or any of their representatives) and the provisions of Section 5.1.8(b) shall govern all aspects of any discussions and/or negotiations related to any Takeover Proposal after such date. Any violation of the restrictions set forth in this Section 5.1.8(a) by any Representative of the Company or any Company subsidiary, whether or not such Person is purporting to act on behalf of the Company or any Company subsidiary or otherwise shall be deemed to be a breach of this Section 5.1.8(a) by the Company.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Golf Galaxy, Inc.), Agreement and Plan of Merger (Dicks Sporting Goods Inc), Agreement and Plan of Merger (Dicks Sporting Goods Inc)
No Solicitations. (a) During the period beginning on the date of this Agreement From and continuing until 12:01 a.m. local Minneapolis, Minnesota time on the twenty-first (21st) calendar day after the date of this Agreement (the “Solicitation Period End Date”)hereof, the Company and its subsidiariesKCPL will not, and their respective officers, directors and employees, and will not authorize or permit any investment banker, financial advisor, attorney or other representative of them (such individuals, the “Representatives”) shall be permitted its Representatives to, with respect to no more than eight (8) Persons (each such Person, an “Excluded Person”)directly or indirectly, solicit, engage in discussions initiate or negotiate, or take any other action intended or designed to facilitate encourage (including by way of furnishing information, subject ) or take any other action to furnishing the same information to Parent, and subject also to execution of a customary confidentiality agreement, the benefits and terms of which, if more favorable than the confidentiality agreement in place with Parent, shall be extended to Parent) facilitate knowingly any inquiries or the making of any proposal which constitutes, constitutes or may reasonably be expected to lead to, any Takeover to an Acquisition Proposal (as hereinafter defined). Subject defined herein) from any person, or engage in any discussion or negotiations relating thereto or accept any Acquisition Proposal; provided, however, that notwithstanding any other provision hereof, KCPL may (i) at any time prior to the preceding sentence and Section 5.1.8(b)time KCPL's shareholders shall have voted to approve this Agreement, until the earlier of the Effective Time engage in discussions or the date this Agreement is terminated pursuant to Section 7.1 hereofnegotiations with a third party who (without any solicitation, the Company shall notinitiation, nor shall it authorize encouragement, discussion or permit any Company subsidiaries to, and the Company shall direct and use its reasonable best efforts to cause the Representatives of the Company or any Company subsidiary not tonegotiation, directly or indirectly, (iby or with KCPL or its Representatives after the date hereof) solicit, engage in seeks to initiate such discussions or negotiatenegotiations and may furnish such third party information concerning KCPL and its business, or take any other action intended or designed properties and assets if, and only to facilitate the extent that, (including by way of furnishing informationA) any inquiries or (x) the making of any proposal which constitutes, or may third party has first made an Acquisition Proposal that is financially superior to the transactions contemplated herein and has demonstrated that financing for the Acquisition Proposal is reasonably likely to be expected to lead to, any Takeover Proposal obtained (as hereinafter defineddetermined in good faith by KCPL's Board of Directors after consultation with its financial advisors) and (y) KCPL's Board of Directors shall conclude in good faith, after considering applicable provisions of state law, on the basis of oral or written advice of outside counsel that such action is necessary for the KCPL Board of Directors to act in a manner consistent with its fiduciary duties under applicable law and (B) prior to furnishing such information to or entering into discussions or negotiations with such person or entity, KCPL (x) provides prompt notice to Western Resources to the effect that it is planning to furnish information to or enter into discussions or negotiations with such person or entity and (y) receives from such person or entity an executed confidentiality agreement in reasonably customary form on terms not in the aggregate materially more favorable to such person or entity than the terms contained in the Confidentiality Agreement, (ii) enter into comply with Rule 14e-2 promulgated under the Exchange Act with regard to a tender or exchange offer, and/or (iii) accept an Acquisition Proposal from a third party, provided KCPL first terminates this Agreement pursuant to Section 11.1(e). KCPL shall immediately cease and terminate any agreement existing solicitation, initiation, encouragement, activity, discussion or negotiation with any parties conducted heretofore by KCPL or its Representatives with respect to a Takeover Proposalthe foregoing. On the Solicitation Period End DateKCPL shall notify Western Resources orally and in writing of any such inquiries, offers or proposals (including, without limitation, the Company shall immediately terminate terms and conditions of any pending discussions or negotiations regarding any Takeover Proposal (other than with Parent or Subsidiary or their respective affiliates or any of their representatives) such proposal and the provisions identity of Section 5.1.8(b) the person making it), within 24 hours of the receipt thereof, shall govern all aspects keep Western Resources informed of the status and details of any discussions and/or negotiations related to any Takeover Proposal after such date. Any violation of the restrictions set forth in this Section 5.1.8(a) by any Representative of the Company inquiry, offer or any Company subsidiary, whether or not such Person is purporting to act on behalf of the Company or any Company subsidiary or otherwise shall be deemed to be a breach of this Section 5.1.8(a) by the Company.proposal,
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Kansas City Power & Light Co), Agreement and Plan of Merger (Western Resources Inc /Ks)
No Solicitations. (a) During Juniper shall, and shall cause its Subsidiaries and its and their respective officers, directors, employees, representatives and agents to, immediately cease any activities, discussions or negotiations with any parties that may be ongoing with respect to an Acquisition Proposal, and request the period beginning return or destruction of all confidential information regarding Juniper and its Subsidiaries provided to any such persons on or prior to the date of this Agreement pursuant to the terms of any confidentiality agreements or otherwise. Juniper shall not, and continuing until 12:01 a.m. local Minneapolis, Minnesota time on the twenty-first (21st) calendar day after the date of this Agreement (the “Solicitation Period End Date”), the Company shall cause its Subsidiaries and its subsidiaries, and their respective officers, directors and directors, trustees, employees, representatives and any investment banker, financial advisor, attorney or other representative of them (such individuals, the “Representatives”) shall be permitted agents not to, with respect to no more than eight directly or indirectly, (8) Persons (each such Person, an “Excluded Person”), i) solicit, engage in discussions participate in, initiate or negotiate, or take any other action intended or designed to facilitate encourage (including by way of furnishing information), subject or take any other action designed or reasonably likely to furnishing the same information to Parentfacilitate or encourage, and subject also to execution of a customary confidentiality agreement, the benefits and terms of which, if more favorable than the confidentiality agreement in place with Parent, shall be extended to Parent) any inquiries or the making of any proposal which that constitutes, or may reasonably be expected to lead to, any Takeover Acquisition Proposal or (as hereinafter defined). Subject to the preceding sentence and Section 5.1.8(b), until the earlier of the Effective Time or the date this Agreement is terminated pursuant to Section 7.1 hereof, the Company shall not, nor shall it authorize or permit ii) participate in any Company subsidiaries to, and the Company shall direct and use its reasonable best efforts to cause the Representatives of the Company or any Company subsidiary not to, directly or indirectly, (i) solicit, engage in discussions or negotiate, or take any other action intended or designed to facilitate negotiations (including by way of furnishing information) regarding any inquiries or Acquisition Proposal; provided, however, that if, at any time before the making date that is 60 days after the date on which the execution of any proposal which constitutesthis Agreement by either Party is publicly announced, Juniper's Special Committee determines in good faith, after consultation with outside counsel and a financial advisor of nationally recognized reputation, that such action is, or may is reasonably be expected likely to lead tobe, necessary in order to comply with the duties of Juniper's Special Committee to Juniper or Juniper's stockholders under applicable law, Juniper may, provided that Juniper has complied in all respects with its obligations under this Section 6.5, in response to an Acquisition Proposal received by Juniper after the date hereof and subject to compliance with this Section 6.5, (x) provided that any Takeover Proposal (as hereinafter defined) such information has been or (ii) enter into any agreement contemporaneously is provided to representatives of the Company's Special Committee, furnish information with respect to Juniper and its Subsidiaries to the person making such Acquisition Proposal (or its designated representatives) pursuant to a Takeover Proposal. On the Solicitation Period End Date, the Company shall immediately terminate any pending confidentiality and standstill agreement and (y) participate in discussions or negotiations regarding any Takeover Proposal (other than with Parent or Subsidiary or their respective affiliates or any of their representatives) and the provisions of Section 5.1.8(b) shall govern all aspects of any discussions and/or negotiations related to any Takeover Proposal after such date. Any violation of the restrictions set forth in this Section 5.1.8(a) by any Representative of the Company or any Company subsidiary, whether or not such Person is purporting to act on behalf of the Company or any Company subsidiary or otherwise shall be deemed to be a breach of this Section 5.1.8(a) by the CompanyAcquisition Proposal.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Monmouth Real Estate Investment Corp), Agreement and Plan of Merger (Monmouth Capital Corp)
No Solicitations. (a) During the period beginning on Except as provided below, from the date of this Agreement and continuing until 12:01 a.m. local Minneapolis, Minnesota time on the twenty-first (21st) calendar day after earlier of the date termination of this Agreement (or the “Solicitation Period End Date”)Effective Time, neither the Company and nor any of its subsidiariesSubsidiaries shall, and their respective officersnor shall they authorize or permit any officer, directors and employeesdirector, and any employee, investment banker, financial advisor, attorney attorney, accountant or other advisor or representative of them (such individualseach, the “Representatives”a "Representative") shall be permitted to, with respect to no more than eight (8) Persons (each such Person, an “Excluded Person”), solicit, engage in discussions retained by or negotiate, acting for or take any other action intended or designed to facilitate (including by way of furnishing information, subject to furnishing the same information to Parent, and subject also to execution of a customary confidentiality agreement, the benefits and terms of which, if more favorable than the confidentiality agreement in place with Parent, shall be extended to Parent) any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead to, any Takeover Proposal (as hereinafter defined). Subject to the preceding sentence and Section 5.1.8(b), until the earlier of the Effective Time or the date this Agreement is terminated pursuant to Section 7.1 hereof, the Company shall not, nor shall it authorize or permit any Company subsidiaries to, and the Company shall direct and use its reasonable best efforts to cause the Representatives on behalf of the Company or any Company subsidiary not of its Subsidiaries to, directly or indirectly, (i) take any action to knowingly solicit, engage in discussions initiate, continue, facilitate or negotiate, or take any other action intended or designed to facilitate encourage (including by way of furnishing or disclosing non-public information) any inquiries offer or the making of any proposal which constitutesfor a merger, consolidation or may reasonably be expected to lead to, any Takeover Proposal (as hereinafter defined) or (ii) enter into any agreement with respect to a Takeover Proposal. On the Solicitation Period End Date, other business combination involving the Company shall immediately terminate any pending discussions or negotiations regarding any Takeover Proposal (other than with Parent or Subsidiary or their respective affiliates or any of their representatives) and its Subsidiaries or any proposal or offer to acquire in any manner, directly or indirectly, 15% or more of the provisions of Section 5.1.8(b) shall govern all aspects shares of any discussions and/or negotiations related to any Takeover Proposal after such date. Any violation class of the restrictions set forth in this Section 5.1.8(a) by any Representative voting securities of the Company or any Company subsidiary, whether of its Subsidiaries or not such Person is purporting to act on behalf a substantial portion of the assets of the Company or any of its Subsidiaries, other than the transactions contemplated by this Agreement or by the Stock Option Agreement (any of the foregoing being referred to as an "Acquisition Proposal"), or (ii) knowingly engage in negotiations, discussions or communications regarding or disclose any information relating to the Company subsidiary or otherwise any of its Subsidiaries or afford access to the properties, books or records of the Company or any of its Subsidiaries to any person, corporation, partnership or other entity or group (a "Potential Acquiror") that may be considering making, or has made, an Acquisition Proposal. The Board of Directors of the Company (including any committee thereof) shall be deemed not withdraw or modify in a manner adverse to be Parent the approval and recommendation of the Offer, this Agreement, the Stock Option Agreement or the Merger or approve or recommend any Acquisition Proposal. Notwithstanding the foregoing, (i) the Company may participate in discussions or negotiations with or furnish information to any third party which makes a breach written Acquisition Proposal which either (x) is not subject to a financing contingency and involves the purchase for cash of 100% of the Company Common Stock at a price per share greater than the purchase price of the Offer or (y) provides for the acquisition of 100% of the Company Common Stock for consideration, not consisting entirely of cash, which the Company's Board of Directors determines, based on the advice of its financial advisor, is financially superior to the purchase price of the Offer (in the case of either (x) or (y), a "Superior Proposal"), and (ii) the Board of Directors or any committee thereof may withdraw or modify in a manner adverse to Parent the approval or recommendation of this Section 5.1.8(aAgreement, the Offer or the Merger and may approve or recommend any such Superior Proposal, if, in the case of either (i) by or (ii), the Company.Board of Directors of the
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ask Asa), Agreement and Plan of Merger (Proxima Corp)
No Solicitations. (a) During the period beginning on From the date of hereof until the Effective Time or such earlier date as this Agreement and continuing until 12:01 a.m. local Minneapolisshall terminate in accordance with its terms, Minnesota time on neither the twenty-first Company, nor any of its Subsidiaries shall directly or indirectly (21sti) calendar day after the date of this Agreement solicit, knowingly encourage or initiate discussion or inquiries with or (the “Solicitation Period End Date”)ii) enter into negotiations or agreements with, the Company and its subsidiariesor furnish any information that is not publicly available to, and their respective officersany corporation, directors and employeespartnership, and any investment bankercompany, financial advisor, attorney Person or other representative of them entity or group (such individuals, the “Representatives”) shall be permitted to, with respect to no more other than eight (8) Persons (each such PersonPurchaser, an “Excluded Person”), solicit, engage in discussions affiliate of Purchaser or negotiatetheir authorized representatives) concerning, or take any other action intended or designed to facilitate (including by way of furnishing information, subject to furnishing the same information to Parent, and subject also to execution of a customary confidentiality agreement, the benefits and terms of which, if more favorable than the confidentiality agreement in place with Parent, shall be extended to Parent) any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead tofacilitate, any Takeover Acquisition Proposal (as hereinafter defineddefined below). Subject to the preceding sentence and Section 5.1.8(b), until the earlier of the Effective Time or the date this Agreement is terminated pursuant to Section 7.1 hereof, the Company shall not, nor shall it authorize or permit any Company subsidiaries to, and the Company and the Subsidiaries will instruct their officers, directors and advisors and financial and legal representatives and consultants (collectively, the "Company Representatives") not to take any action contrary to, or inconsistent with, the foregoing provisions of this sentence. The Company and the Subsidiaries shall, and shall direct and use its reasonable best efforts to cause the Company Representatives to, immediately cease and terminate all existing activities, discussions and negotiations with respect to any Acquisition Proposal. Notwithstanding the foregoing, the Company and the Company Representatives shall not be prohibited from (x) complying with its disclosure obligations under Sections 14d-9 and 14e-2 of the Exchange Act with regard to an Acquisition Proposal, or (y) engaging in any activities described in clause (ii) above (or entering into an agreement resulting from such activities), in response to an inquiry, proposal or offer from a third party if such action is taken by, or upon the authority of, the Company's Board after the Board determines in good faith after consultation with outside legal counsel that such action is necessary in order for its directors to comply with their respective fiduciary duties under applicable law. The Company will notify Purchaser within 72 hours if any inquiries or proposals are received by, any information is requested from, or any negotiations or discussions are sought to be initiated with, the Company, the Subsidiaries or the Company Representatives with respect to an Acquisition Proposal. An "Acquisition Proposal" means any inquiry, proposal or offer from any Person (other than Purchaser or an affiliate of Purchaser) relating to (1) any direct or indirect acquisition or purchase of a business or assets, or assets of the Company or the Subsidiaries that constitutes thirty percent (30%) or more of the net revenues or assets of the Company and the Subsidiaries, taken as a whole, or any Company subsidiary not to, directly direct or indirectlyindirect acquisition or purchase of Shares that would result in a Person or group owning thirty percent (30%) or more of the Shares or voting power (or of securities or rights convertible into or exercisable for such Shares or voting power) of the Company, (i2) solicitany tender offer or exchange offer or other acquisition or series of acquisitions of Shares that, engage if consummated, would result in discussions any Person or negotiategroup beneficially owning thirty percent (30%) or more of the Shares or voting power (or of securities or rights convertible into or exercisable for such Shares or voting power) of the Company, or take any other action intended or designed to facilitate (including by way of furnishing information3) any inquiries merger, consolidation, business combination, recapitalization, liquidation, dissolution or the making of any proposal which constitutes, or may reasonably be expected to lead to, any Takeover Proposal (as hereinafter defined) or (ii) enter into any agreement with respect to a Takeover Proposal. On the Solicitation Period End Date, the Company shall immediately terminate any pending discussions or negotiations regarding any Takeover Proposal (other than with Parent or Subsidiary or their respective affiliates or any of their representatives) and the provisions of Section 5.1.8(b) shall govern all aspects of any discussions and/or negotiations related to any Takeover Proposal after such date. Any violation of the restrictions set forth in this Section 5.1.8(a) by any Representative of similar transaction involving the Company or any Company subsidiary, whether of the Subsidiaries that constitutes thirty percent (30%) or not such Person is purporting to act on behalf more of the net revenues or assets of the Company or any Company subsidiary or otherwise shall be deemed and the Subsidiaries taken as a whole, in each case other than the transactions contemplated by this Agreement. Each of the transactions referred to be a breach in the foregoing definition of this Section 5.1.8(a) by Acquisition Proposal, other than the CompanyMerger, is referred to herein as an "Acquisition Transaction."
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Mariner Health Care Inc), Agreement and Plan of Merger (Mariner Health Care Inc)
No Solicitations. (a) During the period beginning on the date of this Agreement and continuing until 12:01 a.m. local Minneapolis, Minnesota time on the twenty-first (21st) calendar day after the date of this Agreement (the “Solicitation Period End Date”), the Company and its subsidiaries, and their respective officers, directors and employees, and any investment banker, financial advisor, attorney or other representative of them (such individuals, the “Representatives”) shall be permitted to, with respect to no more than eight (8) Persons (each such Person, an “Excluded Person”), solicit, engage in discussions or negotiate, or take any other action intended or designed to facilitate (including by way of furnishing information, subject to furnishing the same information to Parent, and subject also to execution of a customary confidentiality agreement, the benefits and terms of which, if more favorable than the confidentiality agreement in place with Parent, shall be extended to Parent) any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead to, any Takeover Proposal (as hereinafter defined). Subject to the preceding sentence and Section 5.1.8(b), until the earlier of the Effective Time or the date this Agreement is terminated pursuant to Section 7.1 hereof, the The Company shall not, nor and shall it authorize or permit any Company subsidiaries cause the Subsidiary not to, and the Company shall direct not authorize and shall use its commercially reasonable best efforts to cause its and the Subsidiary’s Representatives of the Company or any Company subsidiary not to, directly or indirectly, (i) solicit, engage in discussions initiate or negotiate, or knowingly take any other action intended or designed to facilitate (including by way or encourage the submission of furnishing information) any inquiries Takeover Proposal or the making of any proposal which constitutes, or may that could reasonably be expected to lead to any Takeover Proposal, or, subject to Section 5.2(b), (i) encourage, solicit, initiate, induce, conduct, engage or participate in, any discussions or negotiations with, disclose any non-public information relating to the Company or any Subsidiary to, afford access to the business, properties, assets, books or records of the Company or the Subsidiary 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, (ii) (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or the Subsidiary or (B) approve any transaction under, or any third party becoming an “interested stockholder” under, Xxxxxxx 000 xx xxx XXXX (xxxxx xxxx XX), (xxx) enter into any binding or non-binding 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 (as hereinafter definedeach, a “Company Acquisition Agreement”), or (iv) grant approval pursuant to any “moratorium”, “control share acquisition”, “business combination”, “fair price”, or other form of anti-takeover law, including Section 203 of the DGCL to any Person (other than MM). Subject to Section 5.2(b), neither the Company Board nor any committee thereof shall (i) fail to make, withdraw, amend, modify or materially qualify, in a manner adverse to MM, the Company Board Recommendation, (ii) enter into any agreement with respect to recommend a Takeover Proposal. On , (iii) fail to recommend against acceptance of any tender offer or exchange offer for the Solicitation Period End Dateshares of Company Common Stock within ten (10) Business Days after the commencement of such offer, (iv) make any public statement inconsistent with the Company Board Recommendation, or (v) resolve or agree to take any of the foregoing actions (any of the foregoing, a “Company Adverse Recommendation Change”). The Company shall, and shall cause the Subsidiary to, cease immediately terminate and cause to be terminated, and shall not authorize, and shall use commercially reasonable efforts not to permit, any pending of its or their Representatives to continue, any and all existing activities, discussions or negotiations regarding negotiations, if any, with any Takeover Proposal (other than third party conducted prior to the date hereof with Parent or Subsidiary or their respective affiliates or any of their representatives) and the provisions of Section 5.1.8(b) shall govern all aspects of any discussions and/or negotiations related respect to any Takeover Proposal after and shall use its commercially reasonable efforts to cause any such date. Any violation third party (or its agents or advisors) in possession of the restrictions set forth non-public information in this Section 5.1.8(a) by any Representative respect of the Company or any Company subsidiary, whether the Subsidiary that was furnished by or not such Person is purporting to act on behalf of the Company and the Subsidiary to return or any Company subsidiary or otherwise shall be deemed to be a breach of this Section 5.1.8(adestroy (and confirm destruction of) by the Companyall such information.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Cover All Technologies Inc)
No Solicitations. (a) During the period beginning on the date of this Agreement and continuing until 12:01 a.m. local Minneapolis, Minnesota time on the twenty-first (21st) calendar day after the date of this Agreement (the “Solicitation Period End Date”), the Company and its subsidiariesNo party hereto shall, and their respective officers, directors and employees, and any investment banker, financial advisor, attorney or other representative of them (each such individuals, the “Representatives”) party shall be permitted cause its subsidiaries not to, with respect to no more than eight (8) Persons (each such Person, an “Excluded Person”), solicit, engage in discussions or negotiate, or take any other action intended or designed to facilitate (including by way of furnishing information, subject to furnishing the same information to Parent, and subject also to execution of a customary confidentiality agreement, the benefits and terms of which, if more favorable than the confidentiality agreement in place with Parent, shall be extended to Parent) any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead to, any Takeover Proposal (as hereinafter defined). Subject to the preceding sentence and Section 5.1.8(b), until the earlier of the Effective Time or the date this Agreement is terminated pursuant to Section 7.1 hereof, the Company shall not, nor shall it authorize or permit any Company subsidiaries of its Representatives to, and the Company shall direct and use its reasonable best efforts to cause the Representatives of the Company or any Company subsidiary such persons not to, directly or indirectly, (i) solicitinitiate, engage in discussions solicit or negotiateencourage, or take any other action intended or designed to facilitate (including by way of furnishing information) any inquiries or the making of any offer or proposal which constitutes, that constitutes or may is reasonably be expected likely to lead to, to any Takeover Proposal (as hereinafter defineddefined below), or, in the event of any unsolicited Takeover Proposal, engage in negotiations or provide any confidential information or data to any person relating to any Takeover Proposal. Each party shall notify the other orally and in writing of any such inquiries, offers or proposals (including, without limitation, the terms and conditions of any such proposal and the identity of the person making it) or within 24 hours of the receipt thereof and shall give the other five (ii5) enter into days' advance notice of any agreement to be entered into with or any information to be supplied to any person making such inquiry, offer or proposal. Each party hereto shall immediately cease and cause to be terminated all existing discussions and negotiations, if any, with any other persons conducted heretofore with respect to a any Takeover Proposal. On Notwithstanding anything in this Section 7.11 to the Solicitation Period End Datecontrary, in the Company shall immediately terminate any pending event of an unsolicited Takeover Proposal, unless the DRI Shareholders' Approval and the CNG Shareholders' Approval have both been obtained, DRI or CNG may participate in discussions or negotiations regarding with, furnish information to, and afford access to the properties, books and records of such party and its subsidiaries to any person in connection with a possible Takeover Proposal with respect to such party by such person, if and to the extent that (other than A) the Board of Directors of such party has reasonably concluded in good faith (after consultation with Parent its financial advisors) that the person or Subsidiary or their respective affiliates or any of their representatives) and group making the provisions of Section 5.1.8(b) shall govern all aspects of any discussions and/or negotiations related to any Takeover Proposal after will have adequate sources of financing to consummate the Takeover Proposal and that the Takeover Proposal is more favorable to such date. Any violation party's shareholders than the Merger, (B) the Board of the restrictions set forth Directors of such party is advised in this Section 5.1.8(a) by any Representative a written, reasoned opinion of the Company or any Company subsidiary, whether or not such Person is purporting to act on behalf of the Company or any Company subsidiary or otherwise shall be deemed to be a breach of this Section 5.1.8(a) by the Company.outside counsel that a
Appears in 1 contract
Samples: Agreement and Plan of Merger (Consolidated Natural Gas Co)
No Solicitations. (a) During the period beginning on From the date of this Agreement and continuing until 12:01 a.m. local Minneapolis, Minnesota time on the twenty-first (21st) calendar day after earlier of the date termination of this Agreement (or the “Solicitation Period End Date”)Effective Time, the Company and its subsidiariesneither In Focus, and Proxima nor any of their respective officersSubsidiaries shall, directors and employeesnor shall they authorize or permit any officer, and any director, employee, investment banker, financial advisor, attorney attorney, accountant or other advisor or representative retained by or acting for or on behalf of them (such individualsIn Focus, the “Representatives”) shall be permitted to, with respect to no more than eight (8) Persons (each such Person, an “Excluded Person”), solicit, engage in discussions or negotiate, or take any other action intended or designed to facilitate (including by way of furnishing information, subject to furnishing the same information to Parent, and subject also to execution of a customary confidentiality agreement, the benefits and terms of which, if more favorable than the confidentiality agreement in place with Parent, shall be extended to Parent) any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead to, any Takeover Proposal (as hereinafter defined). Subject to the preceding sentence and Section 5.1.8(b), until the earlier of the Effective Time or the date this Agreement is terminated pursuant to Section 7.1 hereof, the Company shall not, nor shall it authorize or permit any Company subsidiaries to, and the Company shall direct and use its reasonable best efforts to cause the Representatives of the Company Proxima or any Company subsidiary not of their Subsidiaries to, directly or indirectly, (i) take any action to knowingly solicit, engage in discussions initiate, continue, facilitate or negotiate, or take any other action intended or designed to facilitate encourage (including by way of furnishing or disclosing non-public information) any inquiries offer or the making proposal for a merger, consolidation or other business combination involving In Focus, Proxima or any of their Subsidiaries or any proposal or offer to acquire in any manner, directly or indirectly, shares of any proposal which constitutesclass of voting securities of In Focus, Proxima or may reasonably be expected any of their Subsidiaries (excluding, in the case of In Focus, proposals for the acquisition of shares constituting less than 20% of In Focus's outstanding voting securities) or a substantial portion of the assets of In Focus, Proxima or any of their Subsidiaries, other than the transactions contemplated by this Agreement (any of the foregoing being referred to lead toas an "Acquisition Proposal"), any Takeover Proposal (as hereinafter defined) or (ii) enter into any agreement with respect to a Takeover Proposal. On the Solicitation Period End Dateengage in negotiations, the Company shall immediately terminate any pending discussions or negotiations communications regarding or disclose any Takeover Proposal (other than with Parent or Subsidiary or their respective affiliates information relating to In Focus, Proxima or any of their representativesSubsidiaries or afford access to the properties, books or records of In Focus, Proxima or any of their Subsidiaries to any person, corporation, partnership or other entity or group (a "Potential Acquiror") and the provisions that may be considering making, or has made, an Acquisition Proposal. The board of Section 5.1.8(bdirectors of Proxima (including any committee thereof) shall govern all aspects of any discussions and/or negotiations related not withdraw or modify in a manner adverse to any Takeover Proposal after such date. Any violation In Focus the approval and recommendation of the restrictions set forth in Exchange Offer or this Section 5.1.8(a) by Agreement. Neither the board of directors of In Focus or Proxima shall approve or recommend any Representative of the Company or any Company subsidiary, whether or not such Person is purporting to act on behalf of the Company or any Company subsidiary or otherwise shall be deemed to be a breach of this Section 5.1.8(a) by the CompanyAcquisition Proposal.
Appears in 1 contract
Samples: Business Combination Agreement (In Focus Systems Inc)
No Solicitations. (a) During the period beginning on the date of this Agreement and continuing until 12:01 a.m. local Minneapolis, Minnesota time on the twenty-first (21st) calendar day after the date of this Agreement (the “Solicitation Period End Date”), the Company and its subsidiaries, and their respective officers, directors and employees, and any investment banker, financial advisor, attorney or other representative of them (such individuals, the “Representatives”) shall be permitted to, with respect Prior to no more than eight (8) Persons (each such Person, an “Excluded Person”), solicit, engage in discussions or negotiate, or take any other action intended or designed to facilitate (including by way of furnishing information, subject to furnishing the same information to Parent, and subject also to execution of a customary confidentiality agreement, the benefits and terms of which, if more favorable than the confidentiality agreement in place with Parent, shall be extended to Parent) any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead to, any Takeover Proposal (as hereinafter defined). Subject to the preceding sentence and Section 5.1.8(b), until the earlier of the Effective Time or until the date termination of this Agreement is terminated pursuant to Section 7.1 hereofAgreement, no member of Holding's consolidated group shall, without the Company shall not, nor shall it authorize or permit any Company subsidiaries to, and the Company shall direct and use its reasonable best efforts to cause the Representatives prior approval of the Company or any Company subsidiary not to, Whitney: (a) directly or indirectly, solicit or initiate inquiries or proposals with respect to any Acquisition Transaction, or (b) except to the extent determined by the Board of Directors of Holding in good faith, after consultation with its financial advisors and its legal counsel, to be required to discharge properly the directors' fiduciary duties to Holding's consolidated group and its shareholders, (i) solicit, engage in discussions or negotiatefurnish any information relating to, or take participate in any negotiations or discussions concerning, any Acquisition Transaction or any other action intended acquisition or designed to facilitate (including by way purchase of furnishing information) any inquiries all or the making a substantial portion of any proposal which constitutesits assets, or may reasonably be expected to lead toof a substantial equity interest in it, any Takeover Proposal (as hereinafter defined) or (ii) enter into withdraw its recommendation to the shareholders of Holding of the Company Merger, or (iii) make a recommendation of any agreement other Acquisition Transaction, or any other business combination with respect it, other than as contemplated by this Agreement (and in no event will any such information be supplied except pursuant to a Takeover Proposalconfidentiality agreement in form and substance substantially the same as the Confidentiality Agreement). On Each member of Holding's consolidated group shall instruct its officers, directors, agents and affiliates to refrain from doing any of the Solicitation Period End Dateforegoing, the Company shall and will notify Whitney immediately terminate if any pending such inquiries or proposals are received by it, any such information is requested from it, or any such negotiations or discussions or negotiations regarding any Takeover Proposal (other than are sought to be initiated with Parent or Subsidiary or their respective affiliates it or any of their representatives) its officers, directors, agents and the provisions of Section 5.1.8(b) shall govern all aspects of any discussions and/or negotiations related to any Takeover Proposal after such date. Any violation of the restrictions set forth in this Section 5.1.8(a) by any Representative of the Company or any Company subsidiaryaffiliates; provided, whether or not such Person is purporting to act on behalf of the Company or any Company subsidiary or otherwise however, that nothing contained herein shall be deemed to prohibit any officer or director of any member of Holding's consolidated group from taking any action that the Board of Directors of such member, as the case may be, determines, in good faith after consultation with outside legal counsel, is required by law or is required to discharge his fiduciary duties to Holding's consolidated group and Holding's shareholders. Holding and the Bank shall immediately cease and cause to be a breach of this Section 5.1.8(a) by the Companyterminated all existing discussions or negotiations with any persons conducted heretofore with respect to any Acquisition Transaction.
Appears in 1 contract
Samples: Agreement and Plan of Merger (First National Bancshares Inc/ Fl/)
No Solicitations. (a) During the period beginning on the date of this Agreement and continuing until 12:01 a.m. local Minneapolis, Minnesota time on the twenty-first (21st) calendar day after the date of this Agreement (the “Solicitation Period End Date”), the Company and its subsidiaries, and their respective officers, directors and employees, and any investment banker, financial advisor, attorney or other representative of them (such individuals, the “Representatives”) shall be permitted to, with respect to no more than eight (8) Persons (each such Person, an “Excluded Person”), solicit, engage in discussions or negotiate, or take any other action intended or designed to facilitate (including by way of furnishing information, subject to furnishing the same information to Parent, and subject also to execution of a customary confidentiality agreement, the benefits and terms of which, if more favorable than the confidentiality agreement in place with Parent, shall be extended to Parent) any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead to, any Takeover Proposal (as hereinafter defined). Subject to the preceding sentence and Section 5.1.8(b), until Until the earlier of the Fourth Effective Time or and the date of termination of this Agreement is terminated pursuant to the provisions of Section 7.1 hereof13.1, none of the Company Selling Companies or any of their Subsidiaries shall not, take nor shall it authorize or the Selling Companies permit any Company subsidiaries to, and the Company shall direct and use its reasonable best efforts to cause the Representatives of the Company Selling Companies’ or any Company subsidiary not totheir Subsidiaries’ directors, officers, employees, advisors, representatives or agents to take (directly or indirectly, ) any of the following actions with any Person other than Parent and its designees: (i) solicit, entertain, initiate, facilitate or encourage any proposal or offer from, or participate or engage in or conduct any discussions or negotiate, or take any other action intended or designed to facilitate (including by way of furnishing information) any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead tonegotiations with, any Takeover Proposal (as hereinafter defined) Person relating to any inquiry, contact, offer or (ii) enter into any agreement proposal, oral, written or otherwise, formal or informal, with respect to a Takeover Proposal. On any possible Acquisition Proposal for the Solicitation Period End Date, the Company shall immediately terminate any pending discussions or negotiations regarding any Takeover Proposal (other than with Parent or Subsidiary or their respective affiliates Selling Companies or any of their representativesSubsidiaries (whether such Subsidiary is in existence on the date hereof or is hereafter organized), (ii) and provide any information with respect to the provisions Selling Companies or any of Section 5.1.8(btheir Subsidiaries (whether such Subsidiary is in existence on the date hereof or is hereafter organized) shall govern all aspects to any Person other than Parent, relating to (or which the Selling Companies believes would be used for the purpose of formulating) an offer or proposal with respect to, or otherwise assist, cooperate with, facilitate or encourage any effort or attempt by any such Person with regard to, any possible Acquisition Proposal for any of the Selling Companies or any of their Subsidiaries (whether such Subsidiary is in existence on the date hereof or is hereafter organized), (iii) approve or agree to or enter into a Contract with any Person other than Parent providing for an Acquisition Proposal for the Selling Companies or any of their Subsidiaries (whether such Subsidiary is in existence on the date hereof or is hereafter organized), (iv) make or authorize any statement, recommendation, solicitation or endorsement in support of any discussions and/or negotiations related to possible Acquisition Proposal for the Selling Companies or any Takeover Proposal after of their Subsidiaries (whether such date. Any violation Subsidiary is in existence on the date hereof or is hereafter organized) other than the acquisition proposal from Parent contemplated by this Agreement, or (v) authorize or permit any of the restrictions set forth in Selling Companies’ directors, officers, employees, advisors, representatives or agents to take any such action; provided, however, that, at any time prior to the approval and adoption of this Section 5.1.8(a) Agreement by any Representative of the Company or any Company subsidiaryStockholders, whether or if the Selling Companies receive a bona fide written Acquisition Proposal that was unsolicited and that did not such Person is purporting to act on behalf of the Company or any Company subsidiary or otherwise shall be deemed to be result from a breach of this Section 5.1.8(a9.9, the Selling Companies may furnish non-public information with respect to the Selling Companies and their respective Subsidiaries to the Person who made such Acquisition Proposal and may participate in discussions regarding such Acquisition Proposal if (A) by the CompanySelling Companies Boards determine in good faith, after receiving advice from their outside counsel, that failure to do so would violate their fiduciary duties to the Stockholders under applicable Law, and (B) the Selling Companies Boards determine that such Acquisition Proposal is a Superior Proposal.
Appears in 1 contract
No Solicitations. Subject to Section 10 hereof, each Principal Stockholder, in such Principal Stockholder’s capacity as a beneficial owner of Shares and New Shares (as defined in Section 7 hereof), agrees that such Principal Stockholder shall not, nor shall such Principal Stockholder permit any Person “controlling” it or under its “control” (as such term is used in the Exchange Act) to, (a) During the period beginning on the date of this Agreement and continuing until 12:01 a.m. local Minneapolis, Minnesota time on the twenty-first (21st) calendar day after the date of this Agreement (the “Solicitation Period End Date”), the Company and its subsidiaries, and their respective officers, directors and employees, and any investment banker, financial advisor, attorney directly or other representative of them (such individuals, the “Representatives”) shall be permitted to, with respect to no more than eight (8) Persons (each such Person, an “Excluded Person”), indirectly solicit, engage in discussions or negotiateinitiate, propose or take any other action intended or designed to facilitate any Takeover Proposal, (b) enter into any agreement, arrangement or understanding with respect to any Takeover Proposal (including by way any letter of furnishing information, subject to furnishing the same information to Parent, and subject also to execution of a customary confidentiality agreement, the benefits and terms of which, if more favorable than the confidentiality intent or agreement in place principle), (c) initiate or participate in any way in any negotiations or discussions regarding a Takeover Proposal, (d) furnish or disclose to any Third Party any information with Parent, shall be extended to Parent) any inquiries or the making of any proposal which constitutesrespect to, or may which would be reasonably be expected to lead to, any Takeover Proposal Proposal, (e) solicit proxies or become a “participant” in or otherwise assist a “solicitation” (as hereinafter defined). Subject to such terms are defined in Regulation 14A under the preceding sentence and Section 5.1.8(b), until the earlier of the Effective Time or the date this Agreement is terminated pursuant to Section 7.1 hereof, the Company shall not, nor shall it authorize or permit any Company subsidiaries to, and the Company shall direct and use its reasonable best efforts to cause the Representatives of the Company or any Company subsidiary not to, directly or indirectly, (iExchange Act) solicit, engage in discussions or negotiate, or take any other action intended or designed to facilitate (including by way of furnishing information) any inquiries or the making of any proposal which constitutes, or may that would reasonably be expected to lead tocompete with, any Takeover Proposal or would reasonably be expected to interfere with, delay, discourage, adversely affect or inhibit the timely consummation of, the Transaction or would reasonably be expected to result in the abandonment or termination of, or failure to consummate, the Transaction (as hereinafter defined) or (ii) enter into any agreement including with respect to a Takeover Proposal. On the Solicitation Period End Date, the Company shall immediately terminate any pending discussions or negotiations regarding any Takeover Proposal (other than with Parent or Subsidiary or their respective affiliates or any of their representatives) and the provisions of Section 5.1.8(b) shall govern all aspects of any discussions and/or negotiations related to any Takeover Proposal after such date. Any violation or any action related thereto), (f) otherwise encourage or assist any Person in taking or planning any action (including any Takeover Proposal or any action related thereto) which would reasonably be expected to compete with or otherwise would reasonably be expected to interfere with, delay, discourage, adversely affect or inhibit the timely consummation of, the Transaction or would reasonably be expected to result in the abandonment or termination of, or failure to consummate, the Transaction, (g) directly or indirectly encourage, initiate or cooperate in a stockholders’ vote or action by written consent of the restrictions set forth Company’s stockholders that would reasonably be expected to compete with or would reasonably be expected to interfere with, delay, discourage, adversely affect or inhibit the timely consummation of, the Transaction or would reasonably be expected to result in this the abandonment or termination of, or failure to consummate, the Transaction (including with respect to any Takeover Proposal or any action related thereto) or (h) become a member of a “group” (as such term is used in Section 5.1.8(a13(d) by of the Exchange Act) with respect to any Representative voting securities of the Company for any purpose that would reasonably be expected to compete with, or would reasonably be expected to interfere with, delay, discourage, adversely affect or inhibit the timely consummation of the Transaction or would reasonably be expected to result in the abandonment or termination of, or failure to consummate the Transaction (including with respect to any Takeover Proposal or any Company subsidiary, whether or not such Person is purporting to act on behalf action related thereto). Each of the Company or any Company subsidiary or otherwise Principal Stockholders shall be deemed to be a liable for any breach of this Section 5.1.8(a) 5 by the Companyany Person controlling it or under its control.
Appears in 1 contract
No Solicitations. (a) During Prior to the period beginning on the date of this Agreement and continuing until 12:01 a.m. local Minneapolis, Minnesota time on the twenty-first (21st) calendar day after the date of this Agreement (the “Solicitation Period End Date”)Initial Closing, the Company and will not take, nor will it permit any of its subsidiariesAffiliates (or authorize or permit any Representative) to take, and their respective officersdirectly or indirectly, directors and employeesany action to solicit, and any investment bankerencourage, financial advisorreceive, attorney negotiate, assist, accept or other representative of them otherwise facilitate (such individuals, the “Representatives”) shall be permitted to, including by furnishing confidential information with respect to no more than eight (8) Persons (each such Person, an “Excluded Person”the Company or the Subsidiaries or permitting access to their Assets and Properties and Books and Records), solicit, engage in discussions or negotiate, or take any other action intended or designed to facilitate (including by way or induce, any offer, proposal or inquiry from any Person concerning an Acquisition Proposal, or to participate in any discussions, negotiations and other communications regarding, or furnish to any other Person any information with respect to, or execute or enter into any letter of furnishing informationintent, subject to furnishing the same information to Parentagreement in principle, and subject also to execution of a customary confidentiality merger agreement, the benefits and terms of which, if more favorable than the confidentiality acquisition agreement in place with Parent, shall be extended or other similar agreement relating to Parent) any inquiries or the making of any proposal which constitutesAcquisition Proposal, or may reasonably be expected to lead tootherwise cooperate in any way, assist or participate in, facilitate or encourage, any Takeover Proposal (as hereinafter defined). Subject effort or attempt by any other Person to the preceding sentence and Section 5.1.8(b), until the earlier seek to do any of the Effective Time foregoing or in any other way that is intended to or that would result in the date this Agreement is terminated pursuant abandonment of, termination of or failure to Section 7.1 hereofconsummate, the transactions contemplated hereby. The Company shall, as promptly as practicable, cause each of its Affiliates and Representatives to immediately cease and cause to be terminated all existing discussions, negotiations and other communications with any Persons conducted heretofore with respect to any of the foregoing. The Company shall not, nor and shall it authorize or permit any Company subsidiaries cause its Affiliates not to, and without the prior written consent of Purchaser, release any Person from, or waive any provision of, any confidentiality or non-disclosure agreement to which the Company shall direct and use its reasonable best efforts or any of the Subsidiaries is a party that relates to cause any aspect of the Representatives assets or business of the Company or any Company subsidiary not of the Subsidiaries, and shall cause its Subsidiaries and Affiliates to, directly or indirectly, (i) solicit, engage in discussions or negotiate, or take any other action intended or designed use reasonable best efforts to facilitate (including by way of furnishing information) any inquiries or enforce the making provisions of any proposal which constitutes, or may reasonably be expected such agreement. Prior to lead to, any Takeover Proposal (as hereinafter defined) or (ii) enter into any agreement with respect to a Takeover Proposal. On the Solicitation Period End DateInitial Closing, the Company shall immediately terminate will promptly (but in no event later than forty-eight (48) hours) notify Purchaser in writing of (a) the receipt by the Company of any pending discussions Acquisition Proposal, (b) any modification or negotiations regarding amendment to any Takeover Proposal Acquisition Proposal, or (other than with Parent or Subsidiary or their respective affiliates c) any request for nonpublic information relating to the Company or any of their representatives) the Subsidiaries or for access to the Assets and the provisions of Section 5.1.8(b) shall govern all aspects of any discussions and/or negotiations related to any Takeover Proposal after such date. Any violation of the restrictions set forth in this Section 5.1.8(a) by any Representative Properties and Books and Records of the Company or any Company subsidiary, whether or not such Person is purporting to act on behalf of the Subsidiaries in connection with the making of any Acquisition Proposal. The Company or shall promptly (but in no event later than forty-eight (48) hours) provide to Purchaser copies of any Company subsidiary or otherwise shall be deemed to be a breach of this Section 5.1.8(a) written materials received by the CompanyCompany in connection with any such Acquisition Proposal or amendment to an Acquisition Proposal, and the identity of the Person(s) making such Acquisition Proposal, amendment to an Acquisition Proposal or so requesting access to any nonpublic information.
Appears in 1 contract
Samples: Master Purchase and Sale and Contribution Agreement (Prospect Capital Corp)
No Solicitations. (a) During the period beginning on the date of this Agreement and continuing until 12:01 a.m. local Minneapolis, Minnesota time on the twenty-first (21st) calendar day after the date of this Agreement (the “Solicitation Period End Date”), the Company and its subsidiaries, and their respective officers, directors and employees, and any investment banker, financial advisor, attorney or other representative of them (such individuals, the “Representatives”) shall be permitted to, with respect to no more than eight (8) Persons (each such Person, an “Excluded Person”), solicit, engage in discussions or negotiate, or take any other action intended or designed to facilitate (including by way of furnishing information, subject to furnishing the same information to Parent, and subject also to execution of a customary confidentiality agreement, the benefits and terms of which, if more favorable than the confidentiality agreement in place with Parent, shall be extended to Parent) any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead to, any Takeover Proposal (as hereinafter defined). Subject to the preceding sentence and Section 5.1.8(b), until the earlier of the Effective Time or the date this Agreement is terminated pursuant to Section 7.1 hereof, the The Company shall not, nor and shall it authorize or permit any Company subsidiaries cause the Subsidiary not to, and the Company shall direct not authorize and shall use its commercially reasonable best efforts to cause its and the Subsidiary’s Representatives of the Company or any Company subsidiary not to, directly or indirectly, (i) solicit, engage in discussions initiate or negotiate, or knowingly take any other action intended or designed to facilitate (including by way or encourage the submission of furnishing information) any inquiries Takeover Proposal or the making of any proposal which constitutes, or may that could reasonably be expected to lead to any Takeover Proposal, or, subject to Section 5.2(b), (i) encourage, solicit, initiate, induce, conduct, engage or participate in, any discussions or negotiations with, disclose any non-public information relating to the Company or any Subsidiary to, afford access to the business, properties, assets, books or records of the Company or the Subsidiary 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, (ii) (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or the Subsidiary or (B) approve any transaction under, or any third party becoming an “interested stockholder” under, Sxxxxxx 000 xx xxx XXXX (xxxxx xxxx XX), (xxx) enter into any binding or non-binding 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 (as hereinafter definedeach, a “Company Acquisition Agreement”), or (iv) grant approval pursuant to any “moratorium”, “control share acquisition”, “business combination”, “fair price”, or other form of anti-takeover law, including Section 203 of the DGCL to any Person (other than MM). Subject to Section 5.2(b), neither the Company Board nor any committee thereof shall (i) fail to make, withdraw, amend, modify or materially qualify, in a manner adverse to MM, the Company Board Recommendation, (ii) enter into any agreement with respect to recommend a Takeover Proposal. On , (iii) fail to recommend against acceptance of any tender offer or exchange offer for the Solicitation Period End Dateshares of Company Common Stock within ten (10) Business Days after the commencement of such offer, (iv) make any public statement inconsistent with the Company Board Recommendation, or (v) resolve or agree to take any of the foregoing actions (any of the foregoing, a “Company Adverse Recommendation Change”). The Company shall, and shall cause the Subsidiary to, cease immediately terminate and cause to be terminated, and shall not authorize, and shall use commercially reasonable efforts not to permit, any pending of its or their Representatives to continue, any and all existing activities, discussions or negotiations regarding negotiations, if any, with any Takeover Proposal (other than third party conducted prior to the date hereof with Parent or Subsidiary or their respective affiliates or any of their representatives) and the provisions of Section 5.1.8(b) shall govern all aspects of any discussions and/or negotiations related respect to any Takeover Proposal after and shall use its commercially reasonable efforts to cause any such date. Any violation third party (or its agents or advisors) in possession of the restrictions set forth non-public information in this Section 5.1.8(a) by any Representative respect of the Company or any Company subsidiary, whether the Subsidiary that was furnished by or not such Person is purporting to act on behalf of the Company and the Subsidiary to return or any Company subsidiary or otherwise shall be deemed to be a breach of this Section 5.1.8(adestroy (and confirm destruction of) by the Companyall such information.
Appears in 1 contract
No Solicitations. (a) During the period beginning on the date of this Agreement and continuing until 12:01 a.m. local Minneapolis, Minnesota time on the twenty-first (21st) calendar day after the date of this Agreement (the “Solicitation Period End Date”), the Company and its subsidiaries, and their respective officers, directors and employees, and any investment banker, financial advisor, attorney or other representative of them (such individuals, the “Representatives”) shall be permitted to, with respect to no more than eight (8) Persons (each such Person, an “Excluded Person”), solicit, engage in discussions or negotiate, or take any other action intended or designed to facilitate (including by way of furnishing information, subject to furnishing the same information to Parent, and subject also to execution of a customary confidentiality agreement, the benefits and terms of which, if more favorable than the confidentiality agreement in place with Parent, shall be extended to Parent) any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead to, any Takeover Proposal (as hereinafter defined). Subject to the preceding sentence and Section 5.1.8(b), until Until the earlier of the Fourth Effective Time or and the date of termination of this Agreement is terminated pursuant to the provisions of Section 7.1 hereof13.1, none of the Company Selling Companies or any of their Subsidiaries shall not, take nor shall it authorize or the Selling Companies permit any Company subsidiaries to, and the Company shall direct and use its reasonable best efforts to cause the Representatives of the Company Selling Companies' or any Company subsidiary not totheir Subsidiaries' directors, officers, employees, advisors, representatives or agents to take (directly or indirectly, ) any of the following actions with any Person other than Parent and its designees: (i) solicit, entertain, initiate, facilitate or encourage any proposal or offer from, or participate or engage in or conduct any discussions or negotiate, or take any other action intended or designed to facilitate (including by way of furnishing information) any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead tonegotiations with, any Takeover Proposal (as hereinafter defined) Person relating to any inquiry, contact, offer or (ii) enter into any agreement proposal, oral, written or otherwise, formal or informal, with respect to a Takeover Proposal. On any possible Acquisition Proposal for the Solicitation Period End Date, the Company shall immediately terminate any pending discussions or negotiations regarding any Takeover Proposal (other than with Parent or Subsidiary or their respective affiliates Selling Companies or any of their representativesSubsidiaries (whether such Subsidiary is in existence on the date hereof or is hereafter organized), (ii) and provide any information with respect to the provisions Selling Companies or any of Section 5.1.8(btheir Subsidiaries (whether such Subsidiary is in existence on the date hereof or is hereafter organized) shall govern all aspects to any Person other than Parent, relating to (or which the Selling Companies believes would be used for the purpose of formulating) an offer or proposal with respect to, or otherwise assist, cooperate with, facilitate or encourage any effort or attempt by any such Person with regard to, any possible Acquisition Proposal for any of the Selling Companies or any of their Subsidiaries (whether such Subsidiary is in existence on the date hereof or is hereafter organized), (iii) approve or agree to or enter into a Contract with any Person other than Parent providing for an Acquisition Proposal for the Selling Companies or any of their Subsidiaries (whether such Subsidiary is in existence on the date hereof or is hereafter organized), (iv) make or authorize any statement, recommendation, solicitation or endorsement in support of any discussions and/or negotiations related to possible Acquisition Proposal for the Selling Companies or any Takeover Proposal after of their Subsidiaries (whether such date. Any violation Subsidiary is in existence on the date hereof or is hereafter organized) other than the acquisition proposal from Parent contemplated by this Agreement, or (v) authorize or permit any of the restrictions set forth in Selling Companies' directors, officers, employees, advisors, representatives or agents to take any such action; provided, however, that, at any time prior to the approval and adoption of this Section 5.1.8(a) Agreement by any Representative of the Company or any Company subsidiaryStockholders, whether or if the Selling Companies receive a bona fide written Acquisition Proposal that was unsolicited and that did not such Person is purporting to act on behalf of the Company or any Company subsidiary or otherwise shall be deemed to be result from a breach of this Section 5.1.8(a9.9, the Selling Companies may furnish non-public information with respect to the Selling Companies and their respective Subsidiaries to the Person who made such Acquisition Proposal and may participate in discussions regarding such Acquisition Proposal if (A) by the CompanySelling Companies Boards determine in good faith, after receiving advice from their outside counsel, that failure to do so would violate their fiduciary duties to the Stockholders under applicable Law, and (B) the Selling Companies Boards determine that such Acquisition Proposal is a Superior Proposal.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Aavid Thermal Technologies Inc)
No Solicitations. (a) During No member of the period beginning on AVEMCO Group shall directly or indirectly, through any officer, director, employee, representative or agent of any member of the date AVEMCO Group, solicit or encourage the initiation or submission of any inquiries, proposals or offers regarding any acquisition, merger, take-over bid, sale of all or substantially all of the assets or 20% or more of the outstanding shares of capital stock of AVEMCO, whether or not in writing and whether or not delivered to the shareholders of AVEMCO generally (including without limitation by way of a tender offer) (any of the foregoing inquiries or proposals being referred to herein as an "Acquisition Proposal"); provided, however, that nothing contained in this Agreement shall prevent the Board of Directors of AVEMCO from referring any third party to this Section 6.6. Nothing contained in this Section 6.6 or any other provision of this Agreement shall prevent the Board of Directors of AVEMCO from considering or negotiating an unsolicited bona fide Acquisition Proposal. If the Board of Directors of AVEMCO, after duly considering advice, written or otherwise, of 34 40 outside counsel and continuing until 12:01 a.m. local Minneapolisfinancial advisors to AVEMCO, Minnesota time on the twenty-first determines in good faith that it would be inconsistent with its fiduciary responsibilities to not approve or recommend (21st) calendar day after the date and in connection therewith withdraw or modify its approval or recommendation of this Agreement Agreement, and the transactions contemplated hereby) a Superior Proposal (the “Solicitation Period End Date”as defined below), the Company and its subsidiariesthen, and their respective officers, directors and employees, and notwithstanding any investment banker, financial advisor, attorney such approval or other representative of them recommendation (such individuals, the “Representatives”x) AVEMCO shall be permitted to, not enter into any agreement with respect to no more than eight the Superior Proposal and (8) Persons (each such Person, an “Excluded Person”), solicit, engage in discussions or negotiate, or take y) any other action intended or designed to facilitate (including by way obligation of furnishing informationAVEMCO under this Agreement shall not be affected, subject to furnishing the same information to Parent, and subject also to execution of a customary confidentiality agreement, the benefits and terms of which, if more favorable than the confidentiality agreement in place with Parent, shall be extended to Parent) any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead to, any Takeover Proposal (as hereinafter defined). Subject to the preceding sentence and Section 5.1.8(b), until the earlier of the Effective Time or the date unless this Agreement is terminated pursuant to Section 7.1 hereof, 9.1(h) hereof prior to or simultaneously with the Company shall not, nor shall it authorize or permit any Company subsidiaries to, and the Company shall direct and use its reasonable best efforts to cause the Representatives grant of the Company or any Company subsidiary not to, directly or indirectly, (i) solicit, engage in discussions or negotiate, or take any other action intended or designed to facilitate (including by way of furnishing information) any inquiries such approval or the making of such recommendation and AVEMCO, within six Business Days following such termination resulting from such Superior Proposal, pays HCCH the Termination Fee (as defined in Section 9.1(h)). As used herein the term "Superior Proposal" means an unsolicited bona fide proposal made by a third party to acquire AVEMCO pursuant to a tender or exchange offer, a merger, a sale of all or substantially all of its assets or otherwise that the AVEMCO Board of Directors determines in its good faith judgment to be more favorable to the holders of the AVEMCO Common Stock than the transactions contemplated by this Agreement (after considering the advice, written or otherwise, of AVEMCO's professional advisors). (b) AVEMCO shall immediately notify HCCH after receipt of any proposal which constitutesformal, informal, written or oral Acquisition Proposal or any request for nonpublic information relating to any member of the AVEMCO Group in connection with an Acquisition Proposal or for access to the properties, books or records of any member of the AVEMCO Group that informs the Board of Directors or any member of the AVEMCO Group that some other Person is considering making, or may reasonably be expected to lead tohas made, any Takeover Proposal (as hereinafter defined) or (ii) enter into any agreement with respect to a Takeover an Acquisition Proposal. On To the Solicitation Period End Dateextent not prohibited by confidentiality provisions imposed by the offering party or by applicable law or fiduciary duty, such notice to HCCH shall be made orally and in writing and shall indicate in reasonable detail the Company shall immediately terminate any pending discussions or negotiations regarding any Takeover Proposal (other than with Parent or Subsidiary or their respective affiliates or any identity of their representatives) the offeror and the provisions terms and conditions of Section 5.1.8(bsuch proposal, inquiry or contact. (c) If AVEMCO has determined to terminate this Agreement pursuant to subparagraph (a) above, prior to the time AVEMCO gives such notice to HCCH of such termination, AVEMCO shall govern all aspects give written notice to HCCH of any discussions and/or negotiations related its intent to any Takeover terminate and, thereafter HCCH shall have five (5) business days in which to propose additional terms to this Agreement (the "New Proposal"); provided, however, if HCCH's New Proposal after is equal to the Superior Proposal, AVEMCO shall be obligated to reject the Superior Proposal and accept HCCH's New Proposal. (d) If the Board of Directors of AVEMCO receives a request for material nonpublic information by a Person who makes or who states in writing that it intends, subject to satisfactory review of such datenonpublic information, to make a bona fide Acquisition Proposal, AVEMCO may, subject to the execution of a confidentiality agreement substantially similar to that then in effect between AVEMCO and HCCH, provide such Person with access to information regarding AVEMCO. Any violation of the restrictions set forth (e) Nothing contained in this Section 5.1.8(a6.6 shall prevent AVEMCO from complying with Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act, if applicable, with regard to an Acquisition Proposal made in the form of a tender offer by any Representative of the Company or any Company subsidiary, whether or not such Person is purporting to act on behalf of the Company or any Company subsidiary or otherwise shall be deemed to be a breach of this Section 5.1.8(a) by the Company.third party. SECTION 6.7
Appears in 1 contract
No Solicitations. (a) During the period beginning on the date of this Agreement and continuing until 12:01 a.m. local Minneapolis, Minnesota time on the twenty-first (21st) calendar day after the date of this Agreement (the “Solicitation Period End Date”), the Company and its subsidiariesNo party hereto shall, and their respective officers, directors and employees, and any investment banker, financial advisor, attorney or other representative of them (each such individuals, the “Representatives”) party shall be permitted cause its subsidiaries not to, with respect to no more than eight (8) Persons (each such Person, an “Excluded Person”), solicit, engage in discussions or negotiate, or take any other action intended or designed to facilitate (including by way of furnishing information, subject to furnishing the same information to Parent, and subject also to execution of a customary confidentiality agreement, the benefits and terms of which, if more favorable than the confidentiality agreement in place with Parent, shall be extended to Parent) any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead to, any Takeover Proposal (as hereinafter defined). Subject to the preceding sentence and Section 5.1.8(b), until the earlier of the Effective Time or the date this Agreement is terminated pursuant to Section 7.1 hereof, the Company shall not, nor shall it authorize or permit any Company subsidiaries of its Representatives to, and the Company shall direct and use its reasonable best efforts to cause the Representatives of the Company or any Company subsidiary such persons not to, directly or indirectly: initiate, (i) solicit, engage in discussions solicit or negotiateencourage, or take any other action intended or designed to facilitate (including by way of furnishing information) any inquiries or the making of any offer or proposal which constitutes, constitutes or may is reasonably be expected likely to lead to, to any Takeover Acquisition Proposal (as hereinafter defined) defined below), or, in the event of an unsolicited Acquisition Proposal, except prior to the receipt of the Enova Shareholders' Approval and of the Pacific Shareholders' Approval to the extent the Board of Directors of the party receiving such unsolicited Acquisition Proposal determines in good faith after consultation with outside counsel that such action is reasonably necessary for such Board of Directors to act in a manner consistent with its fiduciary duties under applicable law, engage in negotiations or (ii) enter into provide any confidential information or data to any person relating to any Acquisition Proposal. Each party hereto shall notify the other party orally and in writing of any such inquiries, offers or proposals, within 48 hours of the receipt thereof, shall keep the other party informed of the status of any such inquiry, offer or proposal, and shall give the other party three days' advance notice of any agreement to be entered into with or any information to be supplied to any person making such inquiry, offer or proposal. Each party hereto shall immediately cease and cause to be terminated all existing discussions and negotiations, if any, with any parties conducted heretofore with respect to any Acquisition Proposal. As used in this Section 6.12, "ACQUISITION PROPOSAL" shall mean any tender or exchange offer, proposal for a merger, consolidation or other business combination involving any party or any of its material subsidiaries, or any proposal or offer (in each case, whether or not in writing and whether or not delivered to the shareholders of a party generally) to acquire in any manner, directly or indirectly, a substantial equity interest in, or a substantial portion of the assets of any party or any of its material subsidiaries, other than any of the foregoing transactions among the parties hereto or pursuant to the transactions contemplated by this Agreement. Nothing contained herein shall prohibit a party from taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) under the Exchange Act with respect to a Takeover Proposal. On the Solicitation Period End Date, the Company shall immediately terminate any pending discussions or negotiations regarding any Takeover Acquisition Proposal (other than with Parent or Subsidiary or their respective affiliates or any by means of their representatives) and the provisions of Section 5.1.8(b) shall govern all aspects of any discussions and/or negotiations related to any Takeover Proposal after such date. Any violation of the restrictions set forth in this Section 5.1.8(a) by any Representative of the Company or any Company subsidiary, whether or not such Person is purporting to act on behalf of the Company or any Company subsidiary or otherwise shall be deemed to be a breach of this Section 5.1.8(a) by the Companytender offer.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Pacific Enterprises Inc)
No Solicitations. Subject to Section 10 hereof, each Principal Stockholder, in such Principal Stockholder's capacity as a beneficial owner of Shares and New Shares (as defined in Section 7 hereof), agrees that such Principal Stockholder shall not, nor shall such Principal Stockholder permit any Person "controlling" it or under its "control" (as such term is used in the Exchange Act) to, (a) During the period beginning on the date of this Agreement and continuing until 12:01 a.m. local Minneapolis, Minnesota time on the twenty-first (21st) calendar day after the date of this Agreement (the “Solicitation Period End Date”), the Company and its subsidiaries, and their respective officers, directors and employees, and any investment banker, financial advisor, attorney directly or other representative of them (such individuals, the “Representatives”) shall be permitted to, with respect to no more than eight (8) Persons (each such Person, an “Excluded Person”), indirectly solicit, engage in discussions or negotiateinitiate, propose or take any other action intended or designed to facilitate any Takeover Proposal, (b) enter into any agreement, arrangement or understanding with respect to any Takeover Proposal (including by way any letter of furnishing information, subject to furnishing the same information to Parent, and subject also to execution of a customary confidentiality agreement, the benefits and terms of which, if more favorable than the confidentiality intent or agreement in place principle), (c) initiate or participate in any way in any negotiations or discussions regarding a Takeover Proposal, (d) furnish or disclose to any Third Party any information with Parent, shall be extended to Parent) any inquiries or the making of any proposal which constitutesrespect to, or may which would be reasonably be expected to lead to, any Takeover Proposal Proposal, (e) solicit proxies or become a "participant" in or otherwise assist a "solicitation" (as hereinafter defined). Subject to such terms are defined in Regulation 14A under the preceding sentence and Section 5.1.8(b), until the earlier of the Effective Time or the date this Agreement is terminated pursuant to Section 7.1 hereof, the Company shall not, nor shall it authorize or permit any Company subsidiaries to, and the Company shall direct and use its reasonable best efforts to cause the Representatives of the Company or any Company subsidiary not to, directly or indirectly, (iExchange Act) solicit, engage in discussions or negotiate, or take any other action intended or designed to facilitate (including by way of furnishing information) any inquiries or the making of any proposal which constitutes, or may that would reasonably be expected to lead tocompete with, any Takeover Proposal or would reasonably be expected to interfere with, delay, discourage, adversely affect or inhibit the timely consummation of, the Transaction or would reasonably be expected to result in the abandonment or termination of, or failure to consummate, the Transaction (as hereinafter defined) or (ii) enter into any agreement including with respect to a Takeover Proposal. On the Solicitation Period End Date, the Company shall immediately terminate any pending discussions or negotiations regarding any Takeover Proposal (other than with Parent or Subsidiary or their respective affiliates or any of their representatives) and the provisions of Section 5.1.8(b) shall govern all aspects of any discussions and/or negotiations related to any Takeover Proposal after such date. Any violation or any action related thereto), (f) otherwise encourage or assist any Person in taking or planning any action (including any Takeover Proposal or any action related thereto) which would reasonably be expected to compete with or otherwise would reasonably be expected to interfere with, delay, discourage, adversely affect or inhibit the timely consummation of, the Transaction or would reasonably be expected to result in the abandonment or termination of, or failure to consummate, the Transaction, (g) directly or indirectly encourage, initiate or cooperate in a stockholders' vote or action by written consent of the restrictions set forth Company's stockholders that would reasonably be expected to compete with or would reasonably be expected to interfere with, delay, discourage, adversely affect or inhibit the timely consummation of, the Transaction or would reasonably be expected to result in this the abandonment or termination of, or failure to consummate, the Transaction (including with respect to any Takeover Proposal or any action related thereto) or (h) become a member of a "group" (as such term is used in Section 5.1.8(a13(d) by of the Exchange Act) with respect to any Representative voting securities of the Company for any purpose that would reasonably be expected to compete with, or would reasonably be expected to interfere with, delay, discourage, adversely affect or inhibit the timely consummation of the Transaction or would reasonably be expected to result in the abandonment or termination of, or failure to consummate the Transaction (including with respect to any Takeover Proposal or any Company subsidiary, whether or not such Person is purporting to act on behalf action related thereto). Each of the Company or any Company subsidiary or otherwise Principal Stockholders shall be deemed to be a liable for any breach of this Section 5.1.8(a) 5 by the Companyany Person controlling it or under its control.
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No Solicitations. (a) During the period beginning on the date of this Agreement and continuing until 12:01 a.m. local Minneapolis, Minnesota time on the twenty-first (21st) calendar day after the date of this Agreement (the “Solicitation Period End Date”), the Company and its subsidiariesNo party hereto shall, and their respective officers, directors and employees, and any investment banker, financial advisor, attorney or other representative of them (each such individuals, the “Representatives”) party shall be permitted cause its subsidiaries not to, with respect to no more than eight (8) Persons (each such Person, an “Excluded Person”), solicit, engage in discussions or negotiate, or take any other action intended or designed to facilitate (including by way of furnishing information, subject to furnishing the same information to Parent, and subject also to execution of a customary confidentiality agreement, the benefits and terms of which, if more favorable than the confidentiality agreement in place with Parent, shall be extended to Parent) any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead to, any Takeover Proposal (as hereinafter defined). Subject to the preceding sentence and Section 5.1.8(b), until the earlier of the Effective Time or the date this Agreement is terminated pursuant to Section 7.1 hereof, the Company shall not, nor shall it authorize or permit any Company subsidiaries of its Representatives to, and the Company shall direct and use its reasonable best efforts to cause the Representatives of the Company or any Company subsidiary such persons not to, directly or indirectly, (i) solicitinitiate, engage in discussions solicit or negotiateencourage, or take any other action intended or designed to facilitate (including by way of furnishing information) any inquiries or the making of any offer or proposal which constitutes, that constitutes or may is reasonably be expected likely to lead to, to any Takeover Proposal (as hereinafter defineddefined below), or, in the event of any unsolicited Takeover Proposal, engage in negotiations or provide any confidential information or data to any person relating to any Takeover Proposal. Each party shall notify the other orally and in writing of any such inquiries, offers or proposals (including, without limitation, the terms and conditions of any such proposal and the identity of the person making it) or within 24 hours of the receipt thereof and shall give the other five (ii5) enter into days' advance notice of any agreement to be entered into with or any information to be supplied to any person making such inquiry, offer or proposal. Each party hereto shall immediately cease and cause to be terminated all existing discussions and negotiations, if any, with any other persons conducted heretofore with respect to a any Takeover Proposal. On Notwithstanding anything in this Section 7.11 to the Solicitation Period End Datecontrary, in the Company shall immediately terminate any pending event of an unsolicited Takeover Proposal, unless the DRI Shareholders' Approval and the CNG Shareholders' Approval have both been obtained, DRI or CNG may participate in discussions or negotiations regarding with, furnish information to, and afford access to the properties, books and records of such party and its subsidiaries to any person in connection with a possible Takeover Proposal with respect to such party by such person, if and to the extent that (A) the Board of Directors of such party has reasonably concluded in good faith (after consultation with its financial advisors) that the person or group making the Takeover Proposal will have adequate sources of financing to consummate the Takeover Proposal and that the Takeover Proposal is more favorable to such party's shareholders than the Merger, (B) the Board of Directors of such party is advised in a written, reasoned opinion of outside counsel that a failure to do so would result in a breach of its fiduciary duties under applicable law and (C) such party has entered into a confidentiality agreement with the person or group making the Takeover Proposal containing terms and conditions no less favorable to such party than the Confidentiality Agreement. As used in this Section 7.11, "Takeover Proposal" shall mean any tender or exchange offer, proposal for a merger, consolidation or other than with Parent or Subsidiary or their respective affiliates business combination involving any party or any of their representatives) and the provisions of Section 5.1.8(b) shall govern all aspects of its material subsidiaries, or any discussions and/or negotiations related proposal or offer to acquire in any Takeover Proposal after such date. Any violation manner a substantial equity interest in, or a substantial portion of the restrictions set forth in this Section 5.1.8(a) by assets of, any Representative of the Company party or any Company subsidiaryof its material subsidiaries, whether or not such Person is purporting other than pursuant to act on behalf of the Company or any Company subsidiary or otherwise shall be deemed to be a breach of transactions contemplated by this Section 5.1.8(a) by the CompanyAgreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Dominion Resources Inc /Va/)
No Solicitations. (a) During the period beginning on the date of this Agreement and continuing until 12:01 a.m. local Minneapolis, Minnesota time on the twenty-first (21st) calendar day after the date of this Agreement (the “Solicitation Period End Date”), the Company and its subsidiariesNo party hereto shall, and their respective officers, directors and employees, and any investment banker, financial advisor, attorney or other representative of them (each such individuals, the “Representatives”) party shall be permitted cause its subsidiaries not to, with respect to no more than eight (8) Persons (each such Person, an “Excluded Person”), solicit, engage in discussions or negotiate, or take any other action intended or designed to facilitate (including by way of furnishing information, subject to furnishing the same information to Parent, and subject also to execution of a customary confidentiality agreement, the benefits and terms of which, if more favorable than the confidentiality agreement in place with Parent, shall be extended to Parent) any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead to, any Takeover Proposal (as hereinafter defined). Subject to the preceding sentence and Section 5.1.8(b), until the earlier of the Effective Time or the date this Agreement is terminated pursuant to Section 7.1 hereof, the Company shall not, nor shall it authorize or permit any Company subsidiaries of its Representatives to, and the Company shall direct and use its reasonable best efforts to cause the Representatives of the Company or any Company subsidiary such persons not to, directly or indirectly: initiate, (i) solicit, engage in discussions solicit or negotiateencourage, or take any other action intended or designed to facilitate (including by way of furnishing information) any inquiries or the making of any offer or proposal which constitutes, constitutes or may is reasonably be expected likely to lead to, to any Takeover Acquisition Proposal (as hereinafter defined) defined below), or, in the event of an unsolicited Acquisition Proposal, except prior to the receipt of the Enova Shareholders' Approval and of the Pacific Shareholders' Approval to the extent the Board of Directors of the party receiving such unsolicited Acquisition Proposal determines in good faith after consultation with outside counsel that such action is reasonably necessary for such Board of Directors to act in a manner consistent with its fiduciary duties under applicable law, engage in negotiations or (ii) enter into provide any confidential information or data to any person relating to any Acquisition Proposal. Each party hereto shall notify the other party orally and in writing of any such inquiries, offers or proposals, within 48 hours of the receipt thereof, shall keep the other party informed of the status of any such inquiry, offer or proposal, and shall give the other party three days' advance notice of any agreement to be entered into with or any information to be supplied to any person making such inquiry, offer or proposal. Each party hereto shall immediately cease and cause to be terminated all existing discussions and negotiations, if any, with any parties conducted heretofore with respect to any Acquisition Proposal. As used in this Section 6.12, "Acquisition Proposal" shall mean any tender or exchange offer, proposal for a merger, consolidation or other business combination involving any party or any of its material subsidiaries, or any proposal or offer (in each case, whether or not in writing and whether or not delivered to the shareholders of a party generally) to acquire in any manner, directly or indirectly, a substantial equity interest in, or a substantial portion of the assets of any party or any of its material subsidiaries, other than any of the foregoing transactions among the parties hereto or pursuant to the transactions contemplated by this Agreement. Nothing contained herein shall prohibit a party from taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) under the Exchange Act with respect to a Takeover Proposal. On the Solicitation Period End Date, the Company shall immediately terminate any pending discussions or negotiations regarding any Takeover Acquisition Proposal (other than with Parent or Subsidiary or their respective affiliates or any by means of their representatives) and the provisions of Section 5.1.8(b) shall govern all aspects of any discussions and/or negotiations related to any Takeover Proposal after such date. Any violation of the restrictions set forth in this Section 5.1.8(a) by any Representative of the Company or any Company subsidiary, whether or not such Person is purporting to act on behalf of the Company or any Company subsidiary or otherwise shall be deemed to be a breach of this Section 5.1.8(a) by the Companytender offer.
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