No Solicitations. (a) Except for discussions, negotiations and due diligence with DJ Limited ("DJL") and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consent, from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article XII, the Company and its Subsidiaries will not, nor will they authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them to, directly or indirectly, (i) solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract agreement or commitment contemplating or otherwise relating to any Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prohibit or restrict the Board of Directors of the Company from furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited (from and after the date of this Agreement) Superior Offer. The Company shall provide Parent with a copy of any correspondence to be delivered by the Company in connection with such Superior Offer prior to sending such correspondence to any third party (but not any attachments thereto previously provided by the Company to Parent in connection herewith). Except for discussions, negotiations and due diligence with DJL and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consent, the Company and its Subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its Subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 4.03 by the Company. (b) In addition to the obligations of the Company set forth in paragraph (a) of this Section 4.03, the Company as promptly as practicable shall advise Parent orally and in writing of any Acquisition Proposal or any request for non-public information or inquiry which the Company reasonably believes would lead to an Acquisition Proposal, the material terms and conditions of such Acquisition Proposal, request or inquiry, and the identity of the person or group making any such Acquisition Proposal, request or inquiry. The Company will keep Parent informed as promptly as practicable in all material respects of the status of any such Acquisition Proposal, request or inquiry.
Appears in 3 contracts
Sources: Merger Agreement (Netgateway Inc), Merger Agreement (Galaxy Enterprises Inc /Nv/), Merger Agreement (Netgateway Inc)
No Solicitations. (a) Except From and after the Closing Date, the Securities Administrator agrees that it will not take any action to personally, by telephone or mail, solicit the Mortgagor under any Mortgage Loan for discussions, negotiations and due diligence with DJ Limited ("DJL") and with investors with whom it works related to a $2.5 million convertible debt offering, provided, any purpose; provided however, that it is understood and agreed that promotions undertaken by the Company Securities Administrator (or its affiliates) which are directed at customers of the Securities Administrator (or its affiliates) or the public generally, including, without limitation, mass mailings based on commercially acquired mailing lists, and newspaper, radio and television advertisements, shall not consummate such offering without Parent's consentconstitute solicitations under this Section 8.17, nor is the Securities Administrator prohibited from and after the date responding to unsolicited requests or inquiries made by a Mortgagor or agent of this Agreement until the Effective Time or termination of this Agreement pursuant to Article XIIa Mortgagor. In addition, the Company and its Subsidiaries Trustee agrees that it will notnot provide to any third-party, nor will they authorize or permit including any Affiliate of their respective officersthe Trustee, directorsany information, affiliates or employees or any investment bankerincluding, attorney or other advisor or representative retained by any of them but not limited to, directly the names of any Mortgagors or indirectlythe addresses of any Mortgaged Properties, related to any Mortgagor or Mortgage Loan, except as otherwise contemplated by this Agreement. In addition, the Securities Administrator agrees that it will not provide to any third-party, including any Affiliate of the Securities Administrator, information that includes the names or social security numbers of any Mortgagors or the addresses of any Mortgaged Properties, related to any Mortgagor or Mortgage Loan, except as otherwise contemplated by this Agreement. Notwithstanding anything herein to the contrary, the foregoing shall not be construed to prohibit (i) solicit, initiate, encourage or induce the making, submission or announcement disclosure of any Acquisition Proposaland all information that is or becomes publicly known, or information obtained by the Trustee from sources other than the other parties hereto, (ii) participate in disclosure of any discussions and all information (A) if required to do so by any applicable law, rule or negotiations regardingregulation, (B) to any government agency or regulatory body having or claiming authority to regulate or oversee any respects of the Trustee’s business or that of its Affiliates, (C) pursuant to any subpoena, civil investigative demand or similar demand or request of any court, regulatory authority, arbitrator or arbitration to which the Trustee or any Affiliate or an officer, director, employer or shareholder thereof is a party or (D) to any Affiliate, independent or internal auditor, agent, employee or attorney of the Trustee having a need to know the same, provided that the Trustee advises such recipient of the confidential nature of the information being disclosed, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract agreement or commitment contemplating or otherwise relating to any Acquisition Proposal; provided, however, that nothing contained in other disclosure authorized by this Agreement shall prohibit or restrict the Board of Directors of the Company from furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited (from and after the date of this Agreement) Superior Offer. The Company shall provide Parent with a copy of any correspondence to be delivered by the Company in connection with such Superior Offer prior to sending such correspondence to any third party (but not any attachments thereto previously provided by the Company to Parent in connection herewith). Except for discussions, negotiations and due diligence with DJL and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consentDepositor, the Company and its Subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its Subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 4.03 by the Company.
(b) In addition to the obligations of the Company set forth in paragraph (a) of this Section 4.03Seller, the Company as promptly as practicable shall advise Parent orally and in writing of any Acquisition Proposal or any request for non-public information or inquiry which the Company reasonably believes would lead to an Acquisition ProposalServicer, the material terms and conditions of such Acquisition Proposal, request Master Servicer or inquiry, and the identity of the person or group making any such Acquisition Proposal, request or inquiry. The Company will keep Parent informed as promptly as practicable in all material respects of the status of any such Acquisition Proposal, request or inquirySecurities Administrator.
Appears in 3 contracts
Sources: Pooling and Servicing Agreement (Greenwich Capital Acc Inc Provident Fund Mort Loan Tr 2004 1), Pooling and Servicing Agreement (Greenwich Capital Acceptance Inc), Pooling and Servicing Agreement (Provident Funding Mortgage Loan Trust 2005-1)
No Solicitations. Each Stockholder and its affiliates ---------------- (a) Except for discussions, negotiations and due diligence with DJ Limited ("DJL") and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consent, from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article XII, other than the Company and its Subsidiaries subsidiaries will immediately cease any existing discussions or negotiations with any third parties conducted prior to the date hereof with respect to any Acquisition Proposal. Each Stockholder agrees that it will not, nor and will they authorize or permit any of their respective officers, directors, use its best efforts to cause such affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them not to, directly or indirectly, (i) solicit, initiate, initiate or knowingly encourage inquiries or induce the making, submission or announcement of any Acquisition Proposal, (ii) participate in any discussions or negotiations regardingproposals that constitute, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may could reasonably be expected to lead to an Acquisition Proposal or engage in negotiations or discussions concerning to, or provide any confidential information relating to, any Acquisition Proposal, (iii) engage in discussions with any person with respect Proposal or agree to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse approve or recommend or participate in any Acquisition Proposal or sell, transfer or otherwise dispose of any Shares or participation in any Acquisition Proposal (v) enter into any letter of intent other than pursuant to this Agreement or similar document the Merger Agreement). Each Stockholder agrees that it or any contract agreement of such affiliates will promptly advise Parent of, and communicate to Parent the terms of, any such inquiry or commitment contemplating proposal it or otherwise relating any of such affiliates may receive, and will promptly advise Parent if it or any of such affiliates provides any such information to any Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prohibit or restrict the Board of Directors of the Company from furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited (from and after the date of this Agreement) Superior Offer. The Company shall provide Parent with a copy of any correspondence to be delivered by the Company in connection with such Superior Offer prior to sending such correspondence to any third party (but not any attachments thereto previously provided by the Company to Parent in connection herewith). Except for discussions, negotiations and due diligence with DJL and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consent, the Company and its Subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposalperson. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences sentence by any officer, director or employee of the Company or any of its Subsidiaries or any an investment banker, attorney financial advisor, attorney, accountant or other advisor representative or representative agent of the Company or any of its Subsidiaries Stockholder shall be deemed to be a breach violation of this Section 4.03 8 by such Stockholder. In addition, during the Company.
(b) In addition period from the date of this Agreement through the Effective Time, the Stockholders shall not terminate, amend, modify or waive any provision of any confidentiality or standstill agreement relating to the obligations Company to which it or any of its affiliates is a party. During such period, the Stockholders shall, and shall cause the Company set forth in paragraph (a) of this Section 4.03to enforce, to the fullest extent permitted under applicable law, the Company as promptly as practicable shall advise Parent orally and in writing of any Acquisition Proposal or any request for non-public information or inquiry which the Company reasonably believes would lead to an Acquisition Proposal, the material terms and conditions of such Acquisition Proposal, request or inquiry, and the identity of the person or group making any such Acquisition Proposal, request or inquiry. The Company will keep Parent informed as promptly as practicable in all material respects of the status provisions of any such Acquisition Proposalagreement, request including by seeking to obtain injunctions to prevent any breaches of such agreements and to enforce specifically the terms and provisions thereof in any court of the United States of America or inquiryof any state having jurisdiction.
Appears in 3 contracts
Sources: Stockholder Agreement (Gec Acquisition Corp), Stockholder Agreement (Gec Acquisition Corp), Stockholder Agreement (Reltec Corp)
No Solicitations. (a) Except for discussions, negotiations and due diligence with DJ Limited ("DJL") and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consent, from and after From the date of this Agreement hereof until the Effective Time or termination of such earlier date as this Agreement pursuant to Article XIIshall terminate in accordance with its terms, neither the Company and Company, nor any of its Subsidiaries will not, nor will they authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them to, shall directly or indirectly, indirectly (i) solicit, initiate, knowingly encourage or induce the making, submission initiate discussion or announcement of any Acquisition Proposal, inquiries with or (ii) participate in any discussions enter into negotiations or negotiations regardingagreements with, or furnish to any person information that is not publicly available to, any non-public information with respect tocorporation, partnership, company, Person or other entity or group (other than Purchaser, an affiliate of Purchaser or their authorized representatives) concerning, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead tofacilitate, any Acquisition ProposalProposal (as defined below), (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract agreement or commitment contemplating or otherwise relating to any Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prohibit or restrict the Board of Directors of and the Company from furnishing information 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 entering into discussions or negotiations inconsistent with, any person or entity that makes an unsolicited (from and after the date foregoing provisions of this Agreement) Superior Offersentence. The Company and the Subsidiaries shall, and shall provide Parent with a copy of any correspondence to be delivered by cause the Company in connection with such Superior Offer prior to sending such correspondence to any third party (but not any attachments thereto previously provided by the Company to Parent in connection herewith). Except for discussionsRepresentatives to, negotiations and due diligence with DJL and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consent, the Company and its Subsidiaries will immediately cease any and terminate all existing activities, discussions or and negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting Notwithstanding the foregoing, it is understood that any violation 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 restrictions set forth 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 preceding two sentences by 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 officerinquiries or proposals are received by, director any information is requested from, or employee 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 direct or indirect 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, (2) any tender offer or exchange offer or other acquisition or series of acquisitions of Shares that, if consummated, would result in any Person or group 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 (3) any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its the Subsidiaries that constitutes thirty percent (30%) or any investment banker, attorney more of the net revenues or other advisor or representative assets of the Company or any of its and the Subsidiaries shall be deemed to be taken as a breach of whole, in each case other than the transactions contemplated by this Section 4.03 by the Company.
(b) In addition to the obligations Agreement. Each of the Company set forth transactions referred to in paragraph (a) the foregoing definition of this Section 4.03, the Company as promptly as practicable shall advise Parent orally and in writing of any Acquisition Proposal or any request for non-public information or inquiry which the Company reasonably believes would lead to an Acquisition Proposal, other than the material terms and conditions of such Merger, is referred to herein as an "Acquisition Proposal, request or inquiry, and the identity of the person or group making any such Acquisition Proposal, request or inquiry. The Company will keep Parent informed as promptly as practicable in all material respects of the status of any such Acquisition Proposal, request or inquiryTransaction."
Appears in 2 contracts
Sources: Merger Agreement (Mariner Health Care Inc), Merger Agreement (Mariner Health Care Inc)
No Solicitations. (a) Except for discussionsas permitted by this Agreement, negotiations and due diligence with DJ Limited ("DJL") and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company neither Seller shall not consummate such offering without Parent's consent, from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article XII, the Company and its Subsidiaries will not, nor will they authorize or permit any of their its respective officers, directorsdirectors or employees, affiliates or employees or any investment bankerfinancial advisor, attorney attorney, accountant or other advisor or representative retained by any of them tothem, directly or indirectly, to (i) solicit, initiateinitiate or encourage (including by way of furnishing material, encourage nonpublic information regarding the Assets or induce the making, Transferred Business) the making or submission or announcement of any Acquisition Proposal, or (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract agreement or commitment contemplating or otherwise relating to any regarding an Acquisition Proposal; provided, however, that, at any time prior to the approval of the transactions contemplated by this Agreement by the holders of Parent Common Stock, if either of the Sellers receives an inquiry that nothing did not result from a breach of this Section 4.2(a) and (x) Parent determines in good faith, after having considered the advice of outside counsel, that such inquiry could reasonably likely result in a Superior Proposal and (y) Parent receives from such Person an executed confidentiality agreement containing customary limitations (in any event at least as stringent as those contained in this the Confidentiality Agreement between Purchaser and Parent) on the use and disclosure of all information furnished to such Person by or on behalf of Parent or Opco, then the Sellers may furnish information, including, without limitation, non-public information, with respect to the Sellers, the Business and the Assets to the person who made such inquiry and the Sellers may participate in negotiations regarding such Acquisition Proposal.
(b) Parent shall prohibit or restrict promptly (but in any event within two Business Days) notify Purchaser orally and in writing of any Acquisition Proposal (including the Board of Directors identity of the Company from furnishing information Person making such Acquisition Proposal and the material terms of any such Acquisition Proposal) that is made or submitted by any Person. Parent shall thereafter inform Purchaser on a reasonably prompt basis of any material changes to or entering into discussions or negotiations withthe terms and conditions of such Acquisition Proposal, any person or entity that makes an unsolicited (from and after the date of this Agreement) Superior Offer. The Company shall provide Parent with reasonably promptly give Purchaser a copy of any correspondence nonpublic information regarding the Transferred Business delivered to be such Person to the extent not previously delivered by to Purchaser or its representatives.
(c) Promptly after the Company in connection with such Superior Offer prior to sending such correspondence to any third party (but not any attachments thereto previously provided by the Company to Parent in connection herewith). Except for discussions, negotiations execution and due diligence with DJL and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consentdelivery of this Agreement, the Company Sellers will, and its will request their respective Subsidiaries will immediately and Affiliates, officers, directors, employees, investment bankers, attorneys, accountants and other agents to, cease and terminate any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any possible Acquisition Proposal. Without limiting , subject in any case to the foregoing, it is understood that any violation rights of the restrictions set forth Sellers under Section 4.2(a). Parent agrees that it will take the necessary steps to promptly inform the individuals or entities referred to in the preceding two sentences by any officer, director or employee first sentence hereof of the Company or any of its Subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its Subsidiaries shall be deemed to be a breach of obligations undertaken in this Section 4.03 by the Company4.2.
(bd) In addition Parent's Board of Directors may withdraw or modify, in a manner adverse to the obligations Purchaser, its approval or recommendation of the Company set forth transactions contemplated by this Agreement only in paragraph the event Parent's Board of Directors (ai) receives a Superior Proposal, and (ii) determines in good faith that the transactions contemplated by this Agreement are no longer in the best interests of Parent's stockholders.
(e) Nothing contained in this Section 4.03, 4.2 shall prohibit Parent from at any time disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2 promulgated under the Company as promptly as practicable shall advise Parent orally and in writing of any Acquisition Proposal Exchange Act or any request for non-public information or inquiry which the Company reasonably believes would lead to an Acquisition Proposal, the material terms and conditions of such Acquisition Proposal, request or inquiry, and the identity of the person or group from making any such Acquisition Proposal, request or inquiry. The Company will keep Parent informed as promptly as practicable in all material respects of the status of any such Acquisition Proposal, request or inquiryrequired disclosure to Parent's stockholders.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Star Scientific Inc), Asset Purchase Agreement (North Atlantic Trading Co Inc)
No Solicitations. (a) Except for discussions, negotiations and due diligence with DJ Limited ("DJL") and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the The Company shall not consummate such offering without Parent's consent, from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article XII, the Company and its Subsidiaries will not, nor will they shall it authorize or permit any of its Subsidiaries, any of its or their respective officers, directors, affiliates officers or employees or any investment banker, attorney financial advisor, attorney, accountant or other advisor advisor, agent or representative retained by the Company or any of them Subsidiary in connection with the Transactions (collectively, “Representatives”) to, directly or indirectlyindirectly through another Person, (i) solicit, initiate, or knowingly encourage or induce facilitate (including by way of furnishing information) any inquiries or the making, submission or announcement of any Acquisition proposal or offer that constitutes or is reasonably likely to lead to a Takeover Proposal, or (ii) other than informing Persons of the provisions contained in this Section 5.2, enter into, continue or participate in any discussions or negotiations regardingregarding any Takeover Proposal, or furnish any information concerning the Company and its Subsidiaries to any person Person in connection with any non-public information Takeover Proposal, or otherwise cooperate with respect to, or take any other action to knowingly facilitate any inquiries effort or the making of any proposal that constitutes attempt to make or may reasonably be expected to lead to, any Acquisition implement a Takeover Proposal, (iii) engage . Notwithstanding anything in discussions with any person with respect to any Acquisition Proposal, except as this Section 5.2 to the existence contrary, at any time prior to the Acceptance Time, the Company may, upon a good faith determination by the Company Board (after receiving the advice of these provisions, (ivits outside counsel) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract agreement or commitment contemplating or otherwise relating that failure to any Acquisition Proposal; provided, however, that nothing contained take such action would be reasonably likely to result in this Agreement shall prohibit or restrict the Board of Directors a failure of the Company from furnishing information Board to or entering into discussions or negotiations withcomply with its fiduciary duties to the Company Stockholders under applicable Law, any person or entity that makes and after giving Parent prompt written notice of such determination, in response to an unsolicited (from and bona fide written Takeover Proposal made after the date of this Agreement) Superior Offer. The Company shall provide Parent with a copy of any correspondence to be delivered by the Company in connection with such Superior Offer prior to sending such correspondence to any third party (but not any attachments thereto previously provided by the Company to Parent in connection herewith). Except for discussions, negotiations and due diligence with DJL and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, Agreement that the Company shall not consummate such offering without Parent's consentBoard determines in good faith (after receiving advice of its outside counsel and a financial advisor of nationally recognized reputation) constitutes or is reasonably likely to result in a Superior Proposal, (A) furnish information with respect to the Company and its Subsidiaries will to the Person making such Takeover Proposal (and its Representatives) pursuant to a confidentiality agreement containing terms and conditions no more favorable to and no less restrictive of such Person than those contained in the Confidentiality Agreement are to Parent, except that such confidentiality agreement between the Company and such Person shall not contain any provisions that would prevent the Company from complying with its obligations to provide the required disclosure to Parent pursuant to this Section 5.2 and shall permit such Person to make a Takeover Proposal; provided that all such information (to the extent that such written information that has not been previously provided or made available to Parent) is promptly, and in no event later than twenty- four (24) hours after delivery to such Person, provided or made available to Parent, and (B) participate in discussions or negotiations with the Person making such Takeover Proposal (and its Representatives) regarding such Takeover Proposal. Upon execution of this Agreement, the Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease any and cause to be terminated all existing activities, discussions or negotiations with any parties Person previously conducted heretofore with respect to any Acquisition Takeover Proposal, and will request, to the extent permitted under the applicable confidentiality agreement, the prompt return of any confidential information previously furnished to such Persons that has not been previously returned to the Company. Without limiting the foregoing, it is understood that any Any violation of the restrictions set forth in the preceding two sentences this Section 5.2 by any officer, director or employee Representative of the Company or any of its Subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 4.03 5.2 by the Company.
(b) Except as expressly permitted by this Section 5.2(b), the Company Board shall not (i)(A) withdraw, modify or qualify, in a manner adverse to Parent, the Company Recommendation or (B) adopt, recommend or propose publicly to adopt or recommend, to the Company Stockholders a Takeover Proposal (any action described in this clause (i) being referred to as a “Company Adverse Recommendation Change”) (it being understood and agreed that (x) any “stop, look and listen” communication by the Company Board to the Company Stockholders pursuant to Rule 14d-9(f) of the Exchange Act shall not constitute a Company Adverse Recommendation Change and (y) any change or development relating to any clinical trial of one or more products or product candidates of the Company or its Subsidiaries or any determination or communication by the FDA or any other Governmental Authority relating thereto will not be a basis for a Company Adverse Recommendation Change), or (ii) authorize the Company or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle or merger, acquisition or similar agreement with respect to, or that is intended to or could reasonably be expected to lead to, any Takeover Proposal (other than a confidentiality agreement referred to in Section 5.2(a)) (each, a “Company Acquisition Agreement”). Notwithstanding the foregoing, at any time prior to the Acceptance Time and subject to the proviso of this sentence: (x) the Company Board may make a Company Adverse Recommendation Change, upon a good faith determination by the Company Board (after receiving the advice of its outside counsel) that failure to take such action would be reasonably likely to result in a failure of the Company Board to comply with its fiduciary duties to the Company Stockholders under applicable Law, and (y) if the Company Board receives a Takeover Proposal that the Company Board reasonably determines (after receiving the advice of its outside counsel and a financial advisor of nationally recognized reputation) constitutes a Superior Proposal, and that was unsolicited after the date of this Agreement and did not otherwise result from a material breach of this Section 5.2, the Company or its Subsidiaries may enter into a Company Acquisition Agreement with respect to such Superior Proposal if the Company shall have complied with the provisions of the following sentence and, immediately prior to entering into such Company Acquisition Agreement, terminates this Agreement pursuant to Section 7.1(d)(ii) and paid the Termination Fee and Expense Payment pursuant to Section 7.3(a); provided, however, that the Company shall not be entitled to exercise its right to make a Company Adverse Recommendation Change, terminate this Agreement pursuant to Section 7.1(d)(ii) or enter into any Company Acquisition Agreement unless: (1) the Company has provided to Parent five (5) Business Days prior written notice (an “Alternative Transaction Notice”), which Alternative Transaction Notice shall specify that the Company Board is prepared to make a Company Adverse Recommendation Change, terminate this Agreement pursuant to Section 7.1(d)(ii) or enter into any Company Acquisition Agreement unless: (1) the Company has provided to Parent five (5) Business Days prior written notice (an “Alternative Transaction Notice”), which Alternative Transaction Notice shall specify that the Company Board is prepared to make a Company Adverse Recommendation Change, terminate this Agreement pursuant to Section 7.1(d)(ii) and/or enter into any Company Acquisition Agreement, as applicable, and, in the case of a Takeover Proposal that the Company Board has determined constitutes a Superior Proposal, shall attach the most current version of any written agreement relating to such Takeover Proposal and advising Parent that the Company Board has determined that such Takeover Proposal is a Superior Proposal and that the Company Board intends to enter into an agreement providing for such Superior Proposal, (2) during such five (5) Business Day period, if requested by Parent, the Company has engaged in good-faith negotiations with Parent to amend this Agreement in such a manner that the Takeover Proposal that was determined to constitute a Superior Proposal no longer is a Superior Proposal and (3) at 5:00 p.m., New York time, at the end of the fifth (5th) Business Day following the date of receipt of the Alternative Transaction Notice (or, in the event that the Takeover Proposal has been materially revised or modified, at 5:00 p.m., New York time, on the fifth (5th) Business Day following the date of receipt of notice of such material revision or modification, if later), such Takeover Proposal has not been withdrawn and continues to constitute a Superior Proposal (taking into account all changes to the terms of this Agreement agreed to by Parent). It is understood and agreed that an Alternative Transaction Notice shall be required for a Company Adverse Recommendation Change, regardless of whether it was made in response to or as a result of a Superior Proposal.
(c) In addition to the obligations of the Company set forth in paragraph (aSections 5.2(a) of this Section 4.03and 5.2(b), the Company as shall promptly as practicable shall (and in any event within twenty-four (24) hours after learning of the relevant information) advise Parent orally and in writing of its receipt of any Acquisition Takeover Proposal or any request for non-public information or inquiry which the Company reasonably believes would lead to an Acquisition Proposal, and the material terms and conditions of any such Acquisition Takeover Proposal (including any changes to material terms of such Takeover Proposal, request or inquiry, ) and the identity of the person or group Person making any such Acquisition Takeover Proposal, request or inquiry. The Company will shall keep Parent fully informed as promptly as practicable in all material respects of the status and material terms (including any change to the material terms of such Takeover Proposal) of any such Acquisition Takeover Proposal, request and shall provide Parent with copies of all Takeover Proposals (and amendments or inquirymaterial modifications of such Takeover Proposals) and related agreements, draft agreements exchanged by the parties and modifications thereof.
(d) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Galderma Laboratories, Inc.), Merger Agreement (Collagenex Pharmaceuticals Inc)
No Solicitations. (a) Except for discussions, negotiations and due diligence with DJ Limited ("DJL") and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consent, from From and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article XIIhereof, the Company and its Subsidiaries will PSNC (i) shall not, nor will they shall it permit any of the PSNC Subsidiaries to, nor shall it authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them its Representatives to, directly or indirectly, (iA) solicit, initiate, initiate or encourage or induce the making, submission or announcement (including by way of any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect tofurnishing information), or take any other action designed to facilitate facilitate, any inquiries or the making of any offer or proposal that (including, without limitation, any offer or proposal to its shareholders) which constitutes or may reasonably be expected to lead to, to an Acquisition Proposal (as defined herein) from any Acquisition Proposal, third party or (iiiB) engage in any discussions with or negotiations or furnish any confidential information or data to any person with respect or group relating to any Acquisition ProposalProposal and (ii) shall immediately cease and cause to be terminated any existing activities, except as to the existence of these provisions, (iv) approve, endorse discussions or recommend negotiations with any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract agreement or commitment contemplating or otherwise relating parties with respect to any Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prohibit or restrict if, at any time prior to the date on which the PSNC Shareholders' Approval has been obtained (the "Applicable Period"), the Board of Directors of PSNC (i) determines in good faith, based upon the Company from furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited (from and after the date advice of this Agreement) Superior Offer. The Company shall provide Parent with a copy of any correspondence to be delivered by the Company in connection with such Superior Offer prior to sending such correspondence to any third party (but not any attachments thereto previously provided by the Company to Parent in connection herewith). Except for discussions, negotiations and due diligence with DJL and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consent, the Company and its Subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore outside counsel with respect to any such Board's fiduciary duties under applicable law with respect to the Acquisition Proposal. Without limiting the foregoing, that it is understood necessary to do so in order to act in a manner consistent with its fiduciary duties to the PSNC shareholders under applicable law and (ii) concludes in good faith (after consultation with its financial advisors) that any violation the person or group making such Acquisition Proposal will have adequate sources of financing to consummate such Acquisition Proposal and that such Acquisition Proposal, if consummated as proposed, would be more favorable to the restrictions set forth PSNC shareholders than the Mergers, PSNC may, in the preceding two sentences response to an Acquisition Proposal which was not solicited by any officer, director it or employee of the Company or any of its Subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its Subsidiaries shall be deemed to be which did not otherwise result from a breach of this Section 4.03 by 7.10(a), and subject to providing prior written notice of its decision to take such action to SCANA in compliance with Section 7.10(b), (i) furnish to such third party information with respect to itself and its business, properties and assets pursuant to a customary confidentiality agreement on terms not in the Company.
aggregate materially more favorable to such third party than the terms contained in the Confidentiality Agreement and (bii) In addition to the obligations of the Company set forth engage in paragraph (a) of this Section 4.03, the Company as promptly as practicable shall advise Parent orally and in writing of any Acquisition Proposal discussions or any request for non-public information or inquiry which the Company reasonably believes would lead to an Acquisition Proposal, the material terms and conditions of negotiations regarding such Acquisition Proposal. As used herein, request "Acquisition Proposal" shall mean any proposal or inquiryoffer (other than by another party hereto) for a tender or exchange offer, and the identity merger, consolidation or other business combination involving PSNC or any of its material Subsidiaries or any proposal to acquire in any manner, directly or indirectly, 10% or more of the person shares of capital stock in or group making any such Acquisition Proposal, request or inquiry. The Company will keep Parent informed as promptly as practicable in all material respects a substantial portion of the status assets of PSNC or any such Acquisition Proposal, request or inquiryof its material Subsidiaries.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Public Service Co of North Carolina Inc), Merger Agreement (South Carolina Electric & Gas Co)
No Solicitations. Such Shareholder shall not, nor, to the extent applicable to such Shareholder, permit any of its affiliates to, nor shall it authorize any partner, officer, director, advisor or representative of, such Shareholder or any of its affiliates to, prior to or on the Effective Date (a) Except for discussionssolicit, negotiations and due diligence with DJ Limited initiate or knowingly encourage ("DJL"including by way of furnishing information or assistance) and with investors with whom it works related the submission of any inquiries, proposals or offers from any person relating to a $2.5 million convertible debt offering, provided, however, that an Acquisition Proposal (as defined in the Company shall not consummate such offering without Parent's consent, from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article XII, the Company and its Subsidiaries will not, nor will they authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them to, directly or indirectlyMerger Agreement), (ib) solicit, initiate, encourage enter into or induce the making, submission or announcement of any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any person or entity any non-public information with respect toto any proposal which constitutes or may reasonably be expected to lead to an Acquisition Proposal, or (c) take any other action to knowingly facilitate or cooperate with any inquiries or the making of any proposal that constitutes which constitutes, or may reasonably be expected to lead to, any an Acquisition Proposal, (iiid) engage enter into any agreement with respect to an Acquisition Proposal, (e) solicit proxies or become a "participant" in discussions a "solicitation" (as such terms are defined in Regulation 14A under the Exchange Act) with respect to an Acquisition Proposal or otherwise encourage or assist any person party in taking or planning any action that would compete with, restrain or otherwise serve to interfere with or inhibit the timely consummation of the Merger in accordance with the terms of the Merger Agreement, (f) initiate a shareholders' vote or action by consent of the Company's shareholders with respect to an Acquisition Proposal, or (g) become a member of a "group" (as such term is used in Section 13(d) of the Exchange Act) with respect to any Acquisition Proposal, except as to voting securities of the existence Company that takes any action in support of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract agreement or commitment contemplating or otherwise relating to any an Acquisition Proposal; provided, however, that nothing contained in this Agreement section shall prohibit or restrict the Board of Directors of the Company from furnishing information not apply to or entering into discussions or negotiations with, any person in his or entity that makes an unsolicited (from and after the date her capacity as a director of this Agreement) Superior Offer. The Company shall provide Parent with a copy of any correspondence to be delivered by the Company in connection with such Superior Offer prior to sending such correspondence to any third party (but not any attachments thereto previously provided by the Company to Parent in connection herewith). Except for discussions, negotiations and due diligence with DJL and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consent, the Company and its Subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its Subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 4.03 by the Company.
(b) In addition to the obligations of the Company set forth in paragraph (a) of this Section 4.03, the Company as promptly as practicable shall advise Parent orally and in writing of any Acquisition Proposal or any request for non-public information or inquiry which the Company reasonably believes would lead to an Acquisition Proposal, the material terms and conditions of such Acquisition Proposal, request or inquiry, and the identity of the person or group making any such Acquisition Proposal, request or inquiry. The Company will keep Parent informed as promptly as practicable in all material respects of the status of any such Acquisition Proposal, request or inquiry.
Appears in 2 contracts
Sources: Voting Agreement (Ostex International Inc /Wa/), Voting Agreement (Inverness Medical Innovations Inc)
No Solicitations. (ai) Except for discussions, negotiations and due diligence with DJ Limited ("DJL") and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the The Company shall not consummate such offering without Parent's consent, from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article XII, the Company and its Subsidiaries will not, nor will they shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of their respective its officers, directors, affiliates directors or employees or any investment banker, attorney financial advisor, attorney, accountant or other advisor or representative retained by it or any of them to, directly or indirectly, its Subsidiaries (iA) to solicit, initiate, encourage initiate or induce the making, submission or announcement of any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect toencourage, or take any other action to facilitate (including by way of furnishing information), any inquiries or the making of any proposal that constitutes which constitutes, or may reasonably be expected to lead to, any Acquisition ProposalTakeover Proposal (as hereinafter defined) (other than disclosures permitted under Section 5.1.3(v) and the issuance of press releases and the filing or furnishing of documents with the SEC, (iii) engage in discussions with any person with respect to any Acquisition Proposaleach case as permitted under Section 9.11), except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (vB) enter into to participate in any letter of intent discussions or similar document or negotiations regarding any contract agreement or commitment contemplating or otherwise relating to any Acquisition Takeover Proposal; provided, however, that nothing contained (1) the Company may in response to a Takeover Proposal, request clarifications from (but not, in reliance on this Agreement shall prohibit or restrict subsection (1), enter into negotiations with) any third party which makes such Takeover Proposal if such action is taken solely for the Board purpose of Directors obtaining information reasonably necessary for the Company to ascertain whether such Takeover Proposal is a Favorable Third Party Proposal (as defined below) and (2) the Company may, in response to any proposal which constitutes a Favorable Third Party Proposal (as defined below), (A) furnish information with respect to it and its Subsidiaries to any Person pursuant to a customary evaluation agreement, the benefits of the Company from furnishing information terms of which, if more favorable than the Evaluation Agreement (as defined below), shall be extended to Acquiror, and (B) negotiate or entering into otherwise engage in substantive discussions or negotiations with, any person or entity the party making such proposal, if the Company Board determines in good faith by a majority vote, based on the advice of its outside legal counsel, there is a reasonable basis to conclude that makes an unsolicited such action is required for it to comply with its fiduciary duties.
(from and ii) Immediately after the date execution and delivery of this Agreement) Superior Offer. The Company shall provide Parent with a copy of any correspondence to be delivered by the Company in connection with such Superior Offer prior to sending such correspondence to any third party (but not any attachments thereto previously provided by the Company to Parent in connection herewith). Except for discussions, negotiations and due diligence with DJL and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consent, the Company will, and will cause its Subsidiaries will immediately and their respective officers, directors, employees, investment bankers, attorneys, accountants and other agents to, cease and terminate any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any possible Takeover Proposal.
(iii) Subject to this Section 5.1.3, neither the Company, the Company Board nor any committee thereof shall (A) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Acquiror, the approval or recommendation by the Company Board or such committee of the adoption and approval of the matters to be considered at the Special Stockholders Meeting, (B) approve or recommend, or propose publicly to approve or recommend, any Takeover Proposal, or (C) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an “Acquisition Agreement”) related to any Takeover Proposal; provided that (x) actions taken by the Company Board in accordance with the proviso to Section 5.1.3(i) shall not be deemed to be a withdrawal or modification of its approval or recommendation of the Merger and the matters to be considered at the Special Stockholders Meeting and (y) a “stop-look-and-listen” communication of the nature contemplated in Rules 14d-9(f) under the Exchange Act with respect to an unsolicited tender offer or exchange offer that constitutes a Takeover Proposal, without more, shall not be deemed to be any such withdrawal or modification if, within the period contemplated by Rule 14e-2 under the Exchange Act, the Company Board shall publicly confirm such approval and recommendation and recommend against the acceptance of such tender offer or exchange offer by the stockholders of the Company. Without limiting Notwithstanding the foregoing, in the event that the Company Board determines in good faith by a majority vote, based on the advice of its outside legal counsel, that there is a reasonable basis for its determination that such action is required for it is understood that any violation to comply with its fiduciary duties with respect to a Favorable Third Party Proposal, then the Company Board may (1) withdraw or modify its approval or recommendation of the restrictions set forth Merger and the adoption and approval of the matters to be considered at the Special Stockholders Meeting, (2) approve or recommend the Favorable Third Party Proposal and/or (3) after the third business day following the Company’s written notice to Acquiror that specifies the material terms and conditions of the Favorable Third Party Proposal, terminate this Agreement (and concurrently with such termination, if it so chooses, cause the Company to enter into any Acquisition Agreement with respect to the Favorable Third Party Proposal).
(iv) As used in this Agreement, “Takeover Proposal” means any written proposal from a credible third party relating to any direct or indirect acquisition or purchase of 20% or more of the preceding two sentences by assets of the Company and its affiliates, taken as a whole, or 20% or more of any officer, director class or employee series of equity securities of the Company or any of its Subsidiaries Subsidiaries, any tender offer or exchange offer that if consummated would result in any Person beneficially owning 20% or more of the combined voting power of Company Common Shares, or any investment bankermerger, attorney consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Subsidiaries in which the other advisor party thereto or representative its stockholders or members will own 20% or more of the combined voting power of the acquired entity resulting from any such transaction, other than the transactions contemplated by this Agreement. As used in this Agreement, “Favorable Third Party Proposal” means a written proposal from a credible third party relating to any direct or indirect acquisition or purchase of 50% or more of the assets of the Company and its subsidiaries, taken as a whole, or 50% or more of any class or series of equity securities of the Company or any of its Subsidiaries shall be deemed to be a breach subsidiaries, any tender offer or exchange offer that if consummated would result in any Person beneficially owning 50% or more of this Section 4.03 by the Company.
combined voting power of Company Common Shares, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its subsidiaries in which the other party thereto or its stockholders will own 50% or more of the combined voting power of the acquired entity resulting from any such transaction, and otherwise on terms which the Company Board determines in its good faith judgment (b) In addition to based on the obligations advice of the Company set forth in paragraph (a) Financial Advisor or another financial advisor of nationally recognized reputation and considering any modifications to this Section 4.03Agreement proposed by Acquiror), taking into account legal, financial, regulatory and other aspects of the proposal deemed appropriate by the Company as promptly as practicable shall advise Parent orally and Board, to be at a higher price or financial value per Company Common Share than the Merger (taking into account any amendments to this Agreement proposed by Acquiror in writing of any Acquisition Proposal or any request for non-public information or inquiry which response to the Company reasonably believes would lead to an Acquisition Proposal, the material terms and conditions of such Acquisition Proposal, request or inquiry, and the identity receipt by Acquiror of the person or group making any such Acquisition Proposal, request or inquiry. The Company will keep Parent informed as promptly as practicable in all material respects of proposal) to the status of any such Acquisition Proposal, request or inquiryCompany’s stockholders.
Appears in 2 contracts
Sources: Merger Agreement (Max & Ermas Restaurants Inc), Merger Agreement (G&R Acquisition, Inc.)
No Solicitations. (a) The Company will immediately cease any discussions or negotiations with any parties that may be ongoing with respect to an Acquisition Proposal (as defined below). Except for discussionsas explicitly permitted hereunder, negotiations and due diligence with DJ Limited ("DJL") and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consent, from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article XII, the Company and its Subsidiaries will not, nor will they and shall not authorize or permit any of their respective its officers, directors, affiliates directors or employees or any investment banker, attorney financial advisor, attorney, accountant or other advisor or representative retained by any of them torepresentative, directly or indirectly, to, (i) solicit, initiate, initiate or encourage or induce the making, submission or announcement (including by way of any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any person any furnishing non-public information with respect toinformation), or take any other action to facilitate facilitate, any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any an Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (vii) enter into participate in any letter of intent discussions or similar document or any contract agreement or commitment contemplating or otherwise relating to any negotiations regarding an Acquisition Proposal; provided, however, that nothing if the Company Board determines in good faith, after consultation with counsel, that such action is necessary to comply with its fiduciary duties to the Company's stockholders under applicable law, the Company, in response to an Acquisition Proposal and in compliance with Section 7.4(e), may (i) furnish non-public information with respect to the Company to the person who made such Acquisition Proposal pursuant to a confidentiality agreement on terms no more favorable to such person than the Confidentiality Agreement (as defined in Section 7.6); provided that such confidentiality agreement need not include the same standstill provisions as those contained in the Confidentiality Agreement, it being understood that if there are no standstill provisions in such confidentiality agreement or if such provisions are more favorable to the person who made such Acquisition Proposal than those in the Confidentiality Agreement, the Confidentiality Agreement shall be deemed amended to exclude the existing standstill provision or include such more favorable provisions, as the case may be, and (ii) may participate in negotiations regarding such Acquisition Proposal.
(b) The Company Board shall not (i) withdraw or modify in a manner adverse to Parent or Acquisition Sub its approval or recommendation of this Agreement, the Offer or the Merger, (ii) approve or recommend an Acquisition Proposal to its stockholders or (iii) cause the Company to enter into any definitive acquisition agreement with respect to an Acquisition Proposal, unless the Company Board (A) shall have determined in good faith, after consultation with counsel, that the Acquisition Proposal is a Superior Proposal (as defined below) and such action is necessary to comply with its fiduciary duties to the Company's stockholders under applicable law and (B) in the case of clause (iii) above, complies with Section 9.1(c)(ii) hereof. In the event that before the Acceptance Date the Company Board determines in good faith, after consultation with counsel, that it is necessary to do so in order to comply with its fiduciary duties to the Company's stockholders under applicable law, the Company may enter into an agreement with respect to a Superior Proposal, but only forty-eight hours after Parent's receipt of written notice (i) advising Parent that the Company Board has received a Superior Proposal and that the Company has elected to terminate this Agreement pursuant to Section 9.1(c)(ii) of this Agreement and (ii) setting forth such other information required to be included therein as provided in Section 9.1(c)(ii) of this Agreement. If the Company enters into an agreement with respect to a Superior Proposal, it shall have paid, to Parent the Liquidated Amount (as defined below) in accordance with Section 9.2(b) of this Agreement. For purposes of this Agreement, a "SUPERIOR PROPOSAL" means a bona fide Acquisition Proposal to acquire two thirds or more of the Shares then outstanding or all or substantially all of the assets of the Company and the Company Subsidiaries on terms which the Company Board determines in its good faith judgement (after consultation with ▇▇▇▇▇▇▇ ▇▇▇▇▇ or another financial advisor of nationally recognized reputation) to be more favorable to the Company's stockholders than the Offer and the Merger.
(c) Nothing contained in this Agreement Section 7.4 shall prohibit the Company from at any time disclosing information to its stockholders as required by Rule 14e-2 promulgated under the Exchange Act.
(d) As used in this Agreement, the term "ACQUISITION PROPOSAL" shall mean any proposed or restrict actual (i) acquisition, merger, consolidation or similar transaction involving the Board Company, (ii) sale, lease or other disposition, directly or indirectly, by merger, consolidation, share exchange or otherwise, of Directors any assets of the Company from furnishing information or the Company Subsidiaries representing 15% or more of the consolidated assets of the Company and the Company Subsidiaries, (iii) issue, sale or other disposition of (including by way of merger, consolidation, share exchange or any similar transaction) securities (or options, rights or warrants to purchase, or entering into discussions securities convertible into, such securities) representing 15% or negotiations withmore of the votes associated with the outstanding securities of the Company, (iv) transaction in which any person shall acquire beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act), or entity that makes an unsolicited the right to acquire beneficial ownership, or any "group" (from and after as such term is defined under the date Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, 15% or more of this Agreementthe outstanding Shares, (v) Superior Offer. The Company shall provide Parent recapitalization, restructuring, liquidation, dissolution, or other similar type of transaction with a copy of any correspondence respect to be delivered by the Company or (vi) transaction which is similar in connection with such Superior Offer prior to sending such correspondence form, substance or purpose to any third party (but not any attachments thereto previously provided by of the Company to Parent in connection herewith). Except for discussions, negotiations and due diligence with DJL and with investors with whom it works related to a $2.5 million convertible debt offering, foregoing transactions; provided, however, that the Company term "Acquisition Proposal" shall not consummate such offering without Parent's consentinclude the Offer, the Company and its Subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its Subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 4.03 by the Company.
(b) In addition to the obligations of the Company set forth in paragraph (a) of this Section 4.03, the Company as promptly as practicable shall advise Parent orally and in writing of any Acquisition Proposal or any request for non-public information or inquiry which the Company reasonably believes would lead to an Acquisition Proposal, the material terms and conditions of such Acquisition Proposal, request or inquiry, Merger and the identity of the person or group making any such Acquisition Proposal, request or inquiry. The Company will keep Parent informed as promptly as practicable in all material respects of the status of any such Acquisition Proposal, request or inquiryTransactions.
Appears in 2 contracts
Sources: Merger Agreement (Wyman Gordon Co), Merger Agreement (Precision Castparts Corp)
No Solicitations. (a) Except for discussions, negotiations and due diligence with DJ Limited ("DJL") and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consent, from From and after the date hereof, PLC shall not, and shall cause each of this Agreement until the Effective Time or termination of this Agreement pursuant to Article XIIits Affiliates, the Company and its Subsidiaries will not, nor will they authorize or permit any of and their respective officers, directors, affiliates or employees or any investment bankeremployees, attorney agents, advisors or other advisor or representative retained by any of them representatives (each a “Representative”) not to, directly or indirectly, (i) solicit, initiate, initiate or knowingly encourage or induce the making, submission or announcement of any Acquisition Proposal, Proposal or (ii) participate in any discussions or negotiations regarding, or furnish to any person Person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract agreement or commitment contemplating or otherwise relating to any Acquisition ProposalAlternative Transaction, other than with Purchaser; provided, however, that nothing contained to the extent required by the fiduciary obligations of PLC, as determined in this Agreement shall prohibit or restrict the Board of Directors of the Company from furnishing information to or entering into good faith by PLC following consultation with outside counsel, PLC may participate in discussions or negotiations withnegotiations, any person or entity that makes an unsolicited furnish information (from and after the date of this Agreement) Superior Offer. The Company shall provide Parent with a copy of any correspondence to be delivered by the Company in connection with such Superior Offer prior to sending such correspondence to any third party (but not any attachments thereto previously provided by the Company to Parent in connection herewith). Except for discussions, negotiations and due diligence with DJL and with investors with whom it works related pursuant to a $2.5 million convertible debt offeringconfidentiality agreement in customary form), provided, however, that the Company shall not consummate such offering without Parent's consent, the Company and its Subsidiaries will immediately cease or enter into any and all existing activities, discussions or negotiations with any parties conducted heretofore agreement with respect to any Acquisition Proposala Control Transaction so long as PLC takes all actions reasonably necessary to ensure a Person who enters into a Control Transaction is obligated to honor all of Sellers’ obligations hereunder. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company PLC shall promptly inform Fortis if PLC or any of its Subsidiaries Representatives receives a Proposal or any investment bankerinquiry regarding a Proposal unless such Proposal is for a Control Transaction and to disclose such Proposal would, attorney as determined in good faith by PLC following consultation with outside counsel, violate the fiduciary obligations or other advisor or representative an applicable confidentiality agreement of the Company PLC. Prior to PLC informing Purchaser if it or any of its Subsidiaries Representatives receives a Proposal or any inquiry regarding a Proposal, Fortis, on behalf of itself and its Affiliates, shall be deemed to be enter into a breach of this Section 4.03 by the Companyreasonable and customary confidentiality agreement with PLC regarding such Proposal.
(b) In addition For purposes of this Agreement: (i) “Proposal” means any oral or written proposal or offer from any Person relating to an Alternative Transaction; and (ii) “Alternative Transaction” means any (A) direct or indirect acquisition or purchase of any equity securities of, or other equity interest in, any of the Companies that if consummated would result in any Person beneficially owning (or having the right to acquire) any equity securities of, or any equity interest in, any of the Companies or, (B) merger, consolidation, business combination, sale of a material portion of the assets (including, without limitation, by means of any reinsurance or renewal rights transaction), liquidation, dissolution or similar transaction involving any of the Companies or the Business or (C) other transaction the consummation of which could reasonably be expected to materially impede, interfere with, prevent or materially delay the transactions with Purchaser contemplated by this Agreement or which could reasonably be expected to dilute by more than a de minimis amount the benefits of such transactions to Purchaser; and (iii) “Control Transaction” means any transaction that involves a (A) merger or consolidation or similar business combination involving PLC or PLICO, (B) sale of all or substantially all of the assets of PLC or PLICO or (C) a transaction which will result in a Person beneficially owning equity securities of PLC or PLICO representing a majority of the voting power with respect to the obligations election of the Company set forth in paragraph (a) directors of this Section 4.03, the Company as promptly as practicable shall advise Parent orally and in writing of any Acquisition Proposal PLC or any request for non-public information or inquiry which the Company reasonably believes would lead to an Acquisition Proposal, the material terms and conditions of such Acquisition Proposal, request or inquiry, and the identity of the person or group making any such Acquisition Proposal, request or inquiry. The Company will keep Parent informed as promptly as practicable in all material respects of the status of any such Acquisition Proposal, request or inquiryPLICO.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (Protective Life Insurance Co), Stock and Asset Purchase Agreement (Protective Life Corp)
No Solicitations. From May 12, 1998 until the Effective Date or, if earlier, the date this Agreement is terminated or abandoned as provided in Section 10.1, neither the Company nor any Agreement Shareholder shall (anor did they) Except directly or indirectly (i) solicit or initiate any discussion with or (ii) enter into negotiations or agreements with, or furnish any information to, any corporation, partnership, person or other entity or group (other than Parent, an Affiliate of Parent or their authorized representatives) concerning any proposal for discussionsa merger, negotiations and due diligence with DJ Limited sale of substantial assets, sale of shares of stock or securities or other takeover or business combination transaction (the "DJLAcquisition Proposal") involving the Company, and with investors with whom it works related the Company and the Agreement Shareholders will instruct their officers, directors, advisors and financial and legal representatives and consultants (collectively, the "Representatives") not to a $2.5 million convertible debt offering, take any action contrary to the foregoing provisions of this sentence; provided, however, that the Company and its Representatives shall not consummate such offering without Parent's consent, be prohibited from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article XII, the Company and its Subsidiaries will not, nor will they authorize or permit taking any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them to, directly or indirectly, (i) solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal, action described in clause (ii) participate in any discussions or negotiations regardingabove to the extent such action is taken by, or furnish to any person any non-public information with respect toupon the authority of, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract agreement or commitment contemplating or otherwise relating to any Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prohibit or restrict the Board of Directors of the Company from furnishing information in the exercise of the Board's good faith judgment as to or entering into discussions or negotiations withits fiduciary duties to the shareholders of the Company, any person or entity which judgment is based upon the written advice of independent, outside legal counsel that makes an unsolicited (from and after a failure of the date Board of this Agreement) Superior OfferDirectors of the Company to take such action would be likely to constitute a breach of its fiduciary duties to such shareholders. The Company shall provide will notify Parent with a copy of promptly in writing if the Company becomes aware that any correspondence inquiries or proposals are received by, any information is requested from or any negotiations or discussions are sought to be delivered by the Company in connection with such Superior Offer prior to sending such correspondence to any third party (but not any attachments thereto previously provided by the Company to Parent in connection herewith). Except for discussions, negotiations and due diligence with DJL and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consentinitiated with, the Company and its Subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its Subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 4.03 by the Company.
(b) In addition to the obligations of the Company set forth in paragraph (a) of this Section 4.03, the Company as promptly as practicable shall advise Parent orally and in writing of any Acquisition Proposal or any request for non-public information or inquiry which the Company reasonably believes would lead to an Acquisition Proposal. Each time, if any, that the material terms and conditions Board of Directors of the Company determines, upon written advice of such legal counsel and in the exercise of its good faith judgment as to its fiduciary duties to shareholders, that it must enter into negotiations with or furnish any information that is not publicly available to, any corporation, part nership, person or other entity or group (other than Parent, an Affiliate of Parent or their representatives) concerning any Acquisition Proposal, request or inquiry, and the identity Company will give Parent prompt notice of such determination (which shall include a copy of the person or group making any written advice of such Acquisition Proposal, request or inquiry. The Company will keep Parent informed as promptly as practicable in all material respects of the status of any such Acquisition Proposal, request or inquirylegal counsel).
Appears in 1 contract
Sources: Merger Agreement (Metro Tel Corp)
No Solicitations. (a) Except for discussions, negotiations and due diligence with DJ Limited ("DJL") and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the The Company shall not consummate such offering without Parent's consent, from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article XII, the Company and its Subsidiaries will not, nor will they authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them to, directly or indirectly, (i) solicitthrough any officer, initiatedirector, employee, representative or agent of the Company or any of its Subsidiaries, solicit or encourage or induce the making, submission or announcement initiation of any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or proposals regarding any merger, sale of substantial assets, sale of shares of capital stock (including, without limitation, by way of a tender offer) or similar transactions involving the making Company or any of its Subsidiaries (any proposal that constitutes of the foregoing inquiries or may reasonably be expected proposals being referred to lead to, any herein as an "Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract agreement or commitment contemplating or otherwise relating to any Acquisition Proposal"); provided, however, that nothing contained in this Agreement shall prohibit or restrict prevent the Board of Directors of the Company from furnishing information referring any third party to this Section 7.2 or entering into discussions or negotiations withfrom making a copy of this Section 7.2 available to any third party. Nothing contained in this Section 7.2 shall prevent the Board of Directors of the Company from considering, any person or entity negotiating, approving and recommending to the shareholders of the Company (after consulting with its financial advisors, and determining after consulting with counsel that makes the Board of Directors is required to do so in order to discharge properly its fiduciary duties) an unsolicited bona fide Acquisition Proposal which the Board of Directors determines in good faith would result in a transaction more favorable to the Company's shareholders from a financial point of view than the transaction contemplated by this Agreement (from and after the date of this Agreementany such Acquisition Proposal being referred to herein as a "Superior Proposal").
(b) Superior Offer. The Company shall provide Parent with a copy immediately notify Digital after receipt of any correspondence Acquisition Proposal or any request for nonpublic information relating to be delivered by the Company or any of its Subsidiaries in connection with such Superior Offer prior an Acquisition Proposal or for access to sending such correspondence to any third party (but not any attachments thereto previously provided by the Company to Parent in connection herewith). Except for discussionsproperties, negotiations and due diligence with DJL and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consent, the Company and its Subsidiaries will immediately cease any and all existing activities, discussions books or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee records of the Company or any of its Subsidiaries by any Person that informs the Board of Directors of the Company or such Subsidiary that it is considering making, or has made, an Acquisition Proposal. Such notice to Digital shall be made orally and in writing and shall indicate in reasonable detail the identity of the offeror and the terms and conditions of such proposal, inquiry or contact.
(c) If the Board of Directors of the Company receives a request for material nonpublic information by a party who makes a bona fide Acquisition Proposal and the Board of Directors of the Company determines that such proposal is a Superior Proposal then, and only in such case, the Company may, subject to the execution of a confidentiality and standstill agreement substantially similar to that then in effect -53- 57 between the Company and Digital, provide such party with access to information regarding the Company.
(d) The Company shall immediately cease and cause to be terminated any existing discussions or negotiations with any parties (other than Digital and Merger Sub) conducted heretofore with respect to any of the foregoing. The Company agrees not to release any third party from any confidentiality or standstill agreement to which the Company is a party.
(e) The Company shall ensure that the officers, directors and employees of the Company and its Subsidiaries, and any investment banker, attorney banker or other advisor or representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 4.03 retained by the Company.
(b) In addition to the obligations , are aware of the Company set forth restrictions described in paragraph (a) of this Section 4.03, the Company as promptly as practicable shall advise Parent orally and in writing of any Acquisition Proposal or any request for non-public information or inquiry which the Company reasonably believes would lead to an Acquisition Proposal, the material terms and conditions of such Acquisition Proposal, request or inquiry, and the identity of the person or group making any such Acquisition Proposal, request or inquiry. The Company will keep Parent informed as promptly as practicable in all material respects of the status of any such Acquisition Proposal, request or inquiry7.2.
Appears in 1 contract
Sources: Merger Agreement (Digital Systems International Inc)
No Solicitations. (a) Except for discussions, negotiations and due diligence with DJ Limited ("DJL") and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company Seller shall not consummate such offering without Parent's consent, from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article XII, the Company and its Subsidiaries will not, nor will they authorize or permit any of their and shall cause the Seller Subsidiaries and the respective officers, directors, employees, investment bankers, financial advisors, attorneys, accountants, consultants, affiliates or employees or any investment bankerand other agents (collectively, attorney or other advisor or representative retained by any of them the “Seller Representatives”) not to, directly or indirectly, (i) initiate, solicit, initiate, encourage induce or induce the making, submission or announcement of any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect toknowingly encourage, or take any other action to facilitate any inquiries or the making of of, any inquiry, offer or proposal that constitutes which constitutes, or may could reasonably be expected to lead to, an Acquisition Proposal; (ii) participate in discussions or negotiations regarding any Acquisition Proposal or furnish, or otherwise afford access, to any Person (other than Buyer) any information or data with respect to Seller or any of the Seller Subsidiaries or otherwise relating to an Acquisition Proposal, ; (iii) engage release any Person from, waive any provision of, or fail to enforce any confidentiality agreement or standstill agreement to which Seller is a party; or (iv) enter into any agreement, agreement in discussions with any person principle or letter of intent with respect to any Acquisition Proposal, except as Proposal or approve or resolve to the existence of these provisions, (iv) approve, endorse or recommend approve any Acquisition Proposal or (v) enter into any agreement, agreement in principle or letter of intent or similar document or any contract agreement or commitment contemplating or otherwise relating to any Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prohibit or restrict the Board of Directors of the Company from furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited (from and after the date of this Agreement) Superior Offer. The Company shall provide Parent with a copy of any correspondence to be delivered by the Company in connection with such Superior Offer prior to sending such correspondence to any third party (but not any attachments thereto previously provided by the Company to Parent in connection herewith). Except for discussions, negotiations and due diligence with DJL and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consent, the Company and its Subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any Any violation of the foregoing restrictions set forth in the preceding two sentences by any officer, director or employee of the Company Seller or any Representative, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of its Subsidiaries Seller or any investment bankerotherwise, attorney or other advisor or representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 4.03 Agreement by the Company.
(b) In addition Seller. Seller and Seller Subsidiaries shall, and shall cause each of Seller Representatives to, immediately cease and cause to the obligations of the Company set forth in paragraph (a) of this Section 4.03be terminated any and all existing discussions, the Company as promptly as practicable shall advise Parent orally negotiations, and in writing of communications with any Acquisition Proposal Persons with respect to any existing or any request for non-public information or inquiry which the Company reasonably believes would lead to an potential Acquisition Proposal, the material terms and conditions of such Acquisition Proposal, request or inquiry, and the identity of the person or group making any such Acquisition Proposal, request or inquiry. The Company will keep Parent informed as promptly as practicable in all material respects of the status of any such Acquisition Proposal, request or inquiry.
Appears in 1 contract
No Solicitations. (a) Except for discussions, negotiations Seller and due diligence with DJ Limited ("DJL") and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall MPC will not consummate such offering without Parent's consent, from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article XII, the Company and its Subsidiaries will nottake, nor will they permit the Company, the Subsidiaries or any Affiliate of Seller or MPC (or authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney financial advisor, attorney, accountant or other advisor or representative Person retained by or acting for or on behalf of Seller, MPC, the Company, the Subsidiaries or any of them tosuch Affiliate) to take, directly or indirectly, (i) any action to solicit, initiateencourage, encourage receive, negotiate, assist or induce otherwise facilitate (including by furnishing confidential information with respect to MPC, the makingCompany or any Subsidiary or permitting access to the Assets and Properties and Books and Records of MPC, submission the Company or announcement any Subsidiary) or accept any offer or inquiry from any Person concerning an Acquisition Proposal. Notwithstanding the foregoing, MPC or its Board of any Directors shall be permitted to (A) to the extent applicable, comply with Rule 14e-2(a) promulgated under the Exchange Act with regard to an Acquisition Proposal, or (iiB) participate engage in any discussions or negotiations regardingwith, or furnish provide any information to any person Person in response to an unsolicited bona fide written Acquisition Proposal, by any non-public information such Person, if and only to the extent that, in the case of the actions referred to in clause (B), (i) the MPC Stockholders' Meeting shall not have occurred, (ii) the Board of Directors of MPC, concludes in good faith after consultation with respect toits financial advisors and legal advisors, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may such Acquisition Proposal would reasonably be expected to lead to, any Acquisition constitute a Superior Proposal, (iii) engage in discussions with prior to providing any person with respect information or data to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Person in connection with an Acquisition Proposal or (v) enter into by any letter of intent or similar document or any contract agreement or commitment contemplating or otherwise relating to any Acquisition Proposal; providedsuch Person, however, that nothing contained in this Agreement shall prohibit or restrict the Board of Directors of MPC receives from such Person an executed confidentiality agreement on terms no less favorable to the Company from furnishing than those contained in the Confidentiality Agreement between MPC and Purchaser regarding the sale of the Utility Business and (iv) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Board of Directors of MPC notifies Purchaser immediately of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, any person or entity that makes an unsolicited (from and after the date of this Agreement) Superior Offer. The Company shall provide Parent with a copy of any correspondence to be delivered by the Company its representatives indicating, in connection with such Superior Offer prior to sending such correspondence to any third party (but not any attachments thereto previously provided by the Company to Parent in connection herewith). Except for discussions, negotiations and due diligence with DJL and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consentnotice, the Company name of such Person and its Subsidiaries will the material terms and conditions of any proposals or offers. Seller and MPC agree immediately to cease and cause to be terminated any and all existing activities, discussions discussions, or negotiations with any parties heretofore conducted heretofore with respect to any Acquisition Proposal. Without limiting Seller and MPC agree to take the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any necessary steps promptly to inform all such Persons of its Subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its Subsidiaries shall be deemed to be a breach of obligations hereunder. Nothing in this Section 4.03 by the Company4.04 shall (x) permit Seller or MPC to terminate this Agreement (except as specifically provided in Article XI), or (y) affect any other obligation of Seller or MPC under this Agreement.
(b) In addition to the obligations of the Company set forth in paragraph (a) of this Section 4.03, the Company as promptly as practicable shall advise Parent orally and in writing of any Acquisition Proposal or any request for non-public information or inquiry which the Company reasonably believes would lead to an Acquisition Proposal, the material terms and conditions of such Acquisition Proposal, request or inquiry, and the identity of the person or group making any such Acquisition Proposal, request or inquiry. The Company will keep Parent informed as promptly as practicable in all material respects of the status of any such Acquisition Proposal, request or inquiry.
Appears in 1 contract
No Solicitations. (a) Except for discussions, negotiations and due diligence with DJ Limited ("DJL") and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consent, from From and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article XIIARTICLE XI, the Company and its Subsidiaries will not, nor will they it authorize or permit any of its Subsidiaries or any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them to, directly or indirectly, (i) solicit, initiate, encourage solicit or induce initiate the making, submission or announcement of any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person Person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract agreement or commitment contemplating or otherwise relating to any Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prohibit or restrict the Board of Directors of the Company from furnishing information to or entering into discussions or negotiations with, any person or entity Person that makes an unsolicited (from and after the date of this Agreement) proposal that the Board of Directors of Company believes may constitute or may lead to a Superior OfferOffer or to the extent the Board of Directors of Company concludes in good faith that such action is reasonably necessary for the Board of Directors of Company to comply with its fiduciary obligations to shareholders under applicable law. The Company shall provide Parent Lions Gate with a copy of any correspondence to be delivered by the Company in connection with such proposal or Superior Offer prior to sending such correspondence to any third party (but not any attachments thereto previously provided by the Company to Parent in connection herewith). Except for discussions, negotiations and due diligence with DJL and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consent, the Company and its Subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its Subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 4.03 by the Companythird-party.
(b) In addition to the obligations of the Company set forth in paragraph (a) of this Section 4.036.2(a), the Company as promptly as practicable shall advise Parent Lions Gate orally and in writing of any Acquisition Proposal or any request for non-public information or inquiry which the Company reasonably believes would lead to an Acquisition Proposal, the material terms and conditions of such Acquisition Proposal, request or inquiry, and and, unless prohibited by such proposal, the identity of the person or group making any such Acquisition Proposal, request or inquiry. The Company will shall keep Parent Lions Gate informed as promptly as practicable in all material respects of the status of any such Acquisition Proposal, request or inquiry.
Appears in 1 contract
No Solicitations. (a) Except for discussionsNo party hereto shall, negotiations and due diligence with DJ Limited ("DJL") and with investors with whom it works related to a $2.5 million convertible debt offeringeach such party shall cause its subsidiaries not to, provided, however, that the Company shall not consummate such offering without Parent's consent, from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article XII, the Company and its Subsidiaries will not, nor will they authorize or permit any of their respective officersits Representatives to, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them and shall use its best efforts to cause such persons not to, directly or indirectly, (i) solicit, initiate, encourage solicit or induce the making, submission or announcement of any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect toencourage, or take any other action to facilitate any inquiries or the making of any offer or proposal that constitutes or may is reasonably be expected likely to lead toto any Takeover Proposal (as defined below), or, in the event of any Acquisition unsolicited Takeover Proposal, (iii) engage in discussions with negotiations or provide any confidential information or data to any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract agreement or commitment contemplating or otherwise relating to any Acquisition Takeover Proposal; provided. Each party shall notify the other orally and in writing of any such inquiries, howeveroffers or proposals (including, that nothing contained in this Agreement shall prohibit or restrict without limitation, the Board terms and conditions of Directors any such proposal and the identity of the Company from furnishing person making it) within 24 hours of the receipt thereof and shall give the other five (5) days' advance notice of any agreement to be entered into with or any information to or entering into discussions or negotiations with, be supplied to any person making such inquiry, offer or entity that makes an unsolicited (from proposal. Each party hereto shall immediately cease and after the date of this Agreement) Superior Offer. The Company shall provide Parent with a copy of any correspondence cause to be delivered by the Company in connection with such Superior Offer prior to sending such correspondence to any third party (but not any attachments thereto previously provided by the Company to Parent in connection herewith). Except for discussions, negotiations and due diligence with DJL and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consent, the Company and its Subsidiaries will immediately cease any and terminated all existing activitiesdiscussions and negotiations, discussions or negotiations if any, with any parties other persons conducted heretofore with respect to any Acquisition Takeover Proposal. Without limiting Notwithstanding anything in this Section 7.11 to the foregoingcontrary, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officerevent of an unsolicited Takeover Proposal, director unless the DRI Shareholders' Approval and the CNG Shareholders' Approval have both been obtained, DRI or employee of the Company CNG may participate in discussions or any of its Subsidiaries or any investment bankernegotiations with, attorney or other advisor or representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 4.03 by the Company.
(b) In addition furnish information to, and afford access to the obligations of the Company set forth in paragraph (a) of this Section 4.03properties, the Company as promptly as practicable shall advise Parent orally books and in writing of any Acquisition Proposal or any request for non-public information or inquiry which the Company reasonably believes would lead to an Acquisition Proposal, the material terms and conditions records of such Acquisition Proposalparty and its subsidiaries to any person in connection with a possible Takeover Proposal with respect to such party by such person, request or inquiry, if and to the identity 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 such Acquisition Proposaltender or exchange offer, request proposal for a merger, consolidation or inquiry. The Company will keep Parent informed as promptly as practicable other business combination involving any party or any of its material subsidiaries, or any proposal or offer to acquire in all material respects any manner a substantial equity interest in, or a substantial portion of the status assets of, any party or any of any such Acquisition Proposalits material subsidiaries, request or inquiryother than pursuant to the transactions contemplated by this Agreement.
Appears in 1 contract
No Solicitations. From the date hereof until the Escrow Closing Date or until this Agreement is terminated or abandoned as provided in this Agreement, RSI shall not directly or indirectly (ai) Except solicit or initiate discussion with or (ii) enter into negotiations or agreements with, or furnish any information to, any corporation, partnership, person or other entity or group (other than CNI, an affiliate of CNI or their authorized representatives pursuant to this Agreement) concerning any proposal for discussionsa merger, negotiations and due diligence with DJ Limited sale of substantial assets, sale of shares of stock or securities or other takeover or business combination transaction (the "DJLAcquisition Proposal") involving RSI, and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consent, from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article XII, the Company and RSI will instruct its Subsidiaries will not, nor will they authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them to, directly or indirectly, (i) solicit, initiate, encourage or induce the making, submission or announcement of any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish advisors and its financial and legal representatives and consultants not to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as contrary to the existence foregoing provisions of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract agreement or commitment contemplating or otherwise relating to any Acquisition Proposalthis sentence; provided, however, that nothing contained RSI, its officers, directors, advisors and its financial and legal representatives and consultants shall not be prohibited prior to the Escrow Closing Date from taking any action described in this Agreement shall prohibit (ii) above to the extent such action is taken by, or restrict upon the authority of, the Board of Directors of RSI in the Company from furnishing information exercise of good faith judgment as to or entering into discussions or negotiations withits fiduciary duties to the shareholders of RSI, any person or entity which judgment is based upon the advice of independent, outside legal counsel that makes an unsolicited (from and after the date of this Agreement) Superior Offer. The Company shall provide Parent with a copy of any correspondence to be delivered by the Company in connection with such Superior Offer prior to sending such correspondence to any third party (but not any attachments thereto previously provided by the Company to Parent in connection herewith). Except for discussions, negotiations and due diligence with DJL and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consent, the Company and its Subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation failure of the restrictions set forth in the preceding two sentences by any officer, director or employee Board of the Company or any Directors of its Subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its Subsidiaries shall RSI to take such action would be deemed likely to be constitute a breach of its fiduciary duties to such shareholders; PROVIDED FURTHER, that nothing in this Section 4.03 5.7 shall prevent RSI or the Board of Directors from taking, and disclosing to RSI's shareholders, a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Company.
(b) In addition Exchange Act with regard to the obligations any tender offer or from making such disclosure to RSI's shareholders which, as advised in an opinion of the Company set forth in paragraph (a) of this Section 4.03counsel, the Company as is required under applicable law. RSI will notify CNI promptly as practicable shall advise Parent orally and in writing of if RSI becomes aware that any Acquisition Proposal inquiries or proposals are received by, any information is requested from or any request for non-public information negotiations or inquiry which the Company reasonably believes would lead discussions are sought to be initiated with, RSI with respect to an Acquisition Proposal, the material terms and conditions of such RSI shall promptly deliver to CNI any written inquiries or proposals received by RSI relating to an Acquisition Proposal, request or inquiryexcept, and the identity in each case, when RSI has been advised by independent outside counsel for RSI that providing such information to CNI would be likely to result in a breach of the fiduciary duties of RSI's Board of Directors to RSI's shareholders. Each time, if any, that the Board of Directors of RSI determines, upon advice of such legal counsel and in the exercise of its good faith judgment as to its fiduciary duties to shareholders, that it must enter into negotiations with, or furnish any information to, any corporation, partnership, person or other entity or group making (other than CNI, an affiliate of CNI or their authorized representatives) concerning any such Acquisition Proposal, request or inquiry. The Company RSI will keep Parent informed as promptly as practicable give CNI prompt notice of such determination, except in all material respects instances where RSI receives the advice of independent, outside legal counsel for RSI that providing such information to CNI would be a breach of the status fiduciary duties of any such Acquisition Proposal, request or inquiryRSI's Board of Directors.
Appears in 1 contract
No Solicitations. (a) Except for discussions, negotiations and due diligence with DJ Limited ("DJL") and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consent, from From and after the date of this Agreement until hereof, Seller shall not, and shall direct and use commercially reasonable efforts to cause the Effective Time or termination of this Agreement pursuant to Article XIISubsidiaries, Conning, the Company Conning Subsidiaries, RGA and its Subsidiaries will notthe RGA Subsidiaries, nor will they authorize or permit any and each of their respective officers, directors, affiliates or employees or any investment bankeremployees, attorney agents, advisors or other advisor or representative retained by any of them representatives (each, a "Representative") not to, directly or indirectly, (i) solicit, initiate, initiate or knowingly encourage or induce the making, submission or announcement of any Acquisition ProposalProposal (as defined below), (ii) participate in any discussions or negotiations regarding, or furnish to any person Person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or Alternative Transaction (v) enter into any letter of intent or similar document or any contract agreement or commitment contemplating or otherwise relating to any Acquisition Proposalas defined below), other than with Buyer; provided, however, that nothing contained to the extent required by the fiduciary obligations of Seller's Board of Directors, as determined in this Agreement shall prohibit or restrict the good faith by Seller's Board of Directors following consultation with outside counsel, or at the direction of the Company from furnishing information Department or the Reorganization Proceeding, if Seller receives an unsolicited proposal with respect to or entering into a Control Transaction (as defined below), Seller may participate in such discussions or negotiations withor furnish (pursuant to a confidentiality agreement in customary form) such information in response to such Proposal or, subject to Section 11.3, authorize, engage in or enter into any agreement with respect to such Control Transaction. Seller will advise Buyer of, and communicate to Buyer the terms of, any person Proposal that Seller, the Company, any of the Subsidiaries or entity that makes an unsolicited any of their respective Representatives, or, if known by the Company, RGA, any of the RGA Subsidiaries, Conning or any of the Conning Subsidiaries, may receive unless the terms of such Proposal prohibit such disclosure, or otherwise directed by the Director.
(from and after the date b) For purposes of this Agreement: (i) Superior Offer. The Company shall provide Parent with a copy "Proposal" means any written proposal or offer from any Person relating to an Alternative Transaction; (ii) "Alternative Transaction" means any (A) direct or indirect acquisition or purchase of any correspondence to be delivered by the Company in connection with such Superior Offer prior to sending such correspondence to any third party (but not any attachments thereto previously provided by the Company to Parent in connection herewith). Except for discussionsequity securities of, negotiations and due diligence with DJL and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consentor other equity interest in, the Company and its Subsidiaries will immediately cease or any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth Subsidiaries that if consummated would result in any Person beneficially owning (or having the right to acquire) 10% or more of any class of equity securities of, or the equity interest in the preceding two sentences by Company or any officerof the Subsidiaries or which would require approval under any federal, director state or employee local law, rule, regulation or order governing or relating to the current or contemplated operations of the Company or any of its Subsidiaries the Subsidiaries, (B) merger, consolidation, business combination, sale of a material portion of the assets (including, without limitation, by means of any reinsurance or any investment bankerrenewal rights transaction), attorney liquidation, dissolution or other advisor or representative of similar transaction involving the Company or any of its the Subsidiaries shall or (C) other transaction the consummation of which would reasonably be deemed expected to impede, interfere with, prevent or materially delay the transactions with Buyer contemplated by this Agreement or which would reasonably be expected to dilute the benefits of such transactions to Buyer; and (iii) "Control Transaction" means any transaction that involves a breach (A) merger or consolidation or similar business combination involving the Company or a significant Subsidiary of this Section 4.03 by the Company, (B) sale of all or substantially all of the assets of the Company or (C) sale or issuance of the Shares or other equity securities of the Company to a Person which, following the completion of such sale or issuance, will beneficially own the Shares or other equity securities of the Company representing a majority of the voting power with respect to the election of the directors of the Company.
(b) In addition to the obligations of the Company set forth in paragraph (a) of this Section 4.03, the Company as promptly as practicable shall advise Parent orally and in writing of any Acquisition Proposal or any request for non-public information or inquiry which the Company reasonably believes would lead to an Acquisition Proposal, the material terms and conditions of such Acquisition Proposal, request or inquiry, and the identity of the person or group making any such Acquisition Proposal, request or inquiry. The Company will keep Parent informed as promptly as practicable in all material respects of the status of any such Acquisition Proposal, request or inquiry.
Appears in 1 contract
Sources: Stock Purchase Agreement
No Solicitations. (a) Except for discussions, negotiations and due diligence with DJ Limited ("DJL") and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consent, from From and after the date of this Agreement until hereof, Seller shall not, and shall direct and use commercially reasonable efforts to cause the Effective Time or termination of this Agreement pursuant to Article XIISubsidiaries, Conning, the Company Conning Subsidiaries, RGA and its Subsidiaries will notthe RGA Subsidiaries, nor will they authorize or permit any and each of their respective officers, directors, affiliates or employees or any investment bankeremployees, attorney agents, advisors or other advisor or representative retained by any of them representatives (each, a "Representative") not to, directly or indirectly, (i) solicit, initiate, initiate or knowingly encourage or induce the making, submission or announcement of any Acquisition ProposalProposal (as defined below), (ii) participate in any discussions or 41 42 negotiations regarding, or furnish to any person Person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or Alternative Transaction (v) enter into any letter of intent or similar document or any contract agreement or commitment contemplating or otherwise relating to any Acquisition Proposalas defined below), other than with Buyer; provided, however, that nothing contained to the extent required by the fiduciary obligations of Seller's Board of Directors, as determined in this Agreement shall prohibit or restrict the good faith by Seller's Board of Directors following consultation with outside counsel, or at the direction of the Company from furnishing information Department or the Reorganization Proceeding, if Seller receives an unsolicited proposal with respect to or entering into a Control Transaction (as defined below), Seller may participate in such discussions or negotiations withor furnish (pursuant to a confidentiality agreement in customary form) such information in response to such Proposal or, subject to Section 11.3, authorize, engage in or enter into any agreement with respect to such Control Transaction. Seller will advise Buyer of, and communicate to Buyer the terms of, any person Proposal that Seller, the Company, any of the Subsidiaries or entity that makes an unsolicited any of their respective Representatives, or, if known by the Company, RGA, any of the RGA Subsidiaries, Conning or any of the Conning Subsidiaries, may receive unless the terms of such Proposal prohibit such disclosure, or otherwise directed by the Director.
(from and after the date b) For purposes of this Agreement: (i) Superior Offer. The Company shall provide Parent with a copy "Proposal" means any written proposal or offer from any Person relating to an Alternative Transaction; (ii) "Alternative Transaction" means any (A) direct or indirect acquisition or purchase of any correspondence to be delivered by the Company in connection with such Superior Offer prior to sending such correspondence to any third party (but not any attachments thereto previously provided by the Company to Parent in connection herewith). Except for discussionsequity securities of, negotiations and due diligence with DJL and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consentor other equity interest in, the Company and its Subsidiaries will immediately cease or any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth Subsidiaries that if consummated would result in any Person beneficially owning (or having the right to acquire) 10% or more of any class of equity securities of, or the equity interest in the preceding two sentences by Company or any officerof the Subsidiaries or which would require approval under any federal, director state or employee local law, rule, regulation or order governing or relating to the current or contemplated operations of the Company or any of its Subsidiaries the Subsidiaries, (B) merger, consolidation, business combination, sale of a material portion of the assets (including, without limitation, by means of any reinsurance or any investment bankerrenewal rights transaction), attorney liquidation, dissolution or other advisor or representative of similar transaction involving the Company or any of its the Subsidiaries shall or (C) other transaction the consummation of which would reasonably be deemed expected to impede, interfere with, prevent or materially delay the transactions with Buyer contemplated by this Agreement or which would reasonably be expected to dilute the benefits of such transactions to Buyer; and (iii) "Control Transaction" means any transaction that involves a breach (A) merger or consolidation or similar business combination involving the Company or a significant Subsidiary of this Section 4.03 by the Company, (B) sale of all or substantially all of the assets of the Company or (C) sale or issuance of the Shares or other equity securities of the Company to a Person which, following the completion of such sale or issuance, will beneficially own the Shares or other equity securities of the Company representing a majority of the voting power with respect to the election of the directors of the Company.
(b) In addition to the obligations of the Company set forth in paragraph (a) of this Section 4.03, the Company as promptly as practicable shall advise Parent orally and in writing of any Acquisition Proposal or any request for non-public information or inquiry which the Company reasonably believes would lead to an Acquisition Proposal, the material terms and conditions of such Acquisition Proposal, request or inquiry, and the identity of the person or group making any such Acquisition Proposal, request or inquiry. The Company will keep Parent informed as promptly as practicable in all material respects of the status of any such Acquisition Proposal, request or inquiry.
Appears in 1 contract
Sources: Stock Purchase Agreement (Metropolitan Life Insurance Co/Ny)
No Solicitations. (a) Except for discussions, negotiations and due diligence with DJ Limited ("DJL") and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consent, from and after From the date of hereof until the Closing or until this Agreement until the Effective Time is terminated or termination of abandoned as provided in this Agreement pursuant to Article XIIAgreement, the Company and its Subsidiaries will not, neither Seller nor will they authorize or permit any of their respective its officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative agents retained by any or acting on behalf of them toSeller, shall directly or indirectly, indirectly (i) solicitsolicit or initiate discussion with or (ii) except as permitted below, initiateenter into negotiations or agreements with, encourage or induce the makingfurnish any information that is not publicly available to, submission any corporation, partnership, person or announcement other entity or group (other than Purchaser or its authorized representatives pursuant to this Agreement) concerning any proposal for a merger, sale of any of the Stores, sale of shares of stock or securities or other takeover or business combination transaction (an "Acquisition Proposal") involving Seller, and Seller will instruct its officers, directors, advisors and its financial and legal representatives and consultants not to take any action contrary to the foregoing provisions of this sentence. Seller will notify Purchaser promptly in writing if it becomes aware that any inquiries or proposals are received by, any information is requested from or any negotiations or discussions are sought to be initiated with, Seller with respect to an Acquisition Proposal.
(b) Notwithstanding the foregoing, in response to any Acquisition Proposal that has not been solicited in violation of Section 5.3(a), Seller may furnish information concerning its business, properties or assets to the person (a "Potential Acquiror") making such unsolicited Acquisition Proposal and participate in negotiations with the Potential Acquiror if (i) Seller's Board of Directors concludes in good faith that such person is reasonably capable of consummating such Acquisition Proposal, (ii) participate in any discussions or negotiations regardingtaking into account all legal, or furnish to any financial, regulatory and other aspects of the Acquisition Proposal and the person any non-public information with respect tomaking the Acquisition Proposal, or take any other action to facilitate any inquiries or the making of any proposal and that constitutes or may such Acquisition Proposal could reasonably be expected to lead toresult in a Superior Offer (as defined below), and (ii) the Board of Directors concludes in good faith, after consultation with its outside legal counsel, that the failure to take such action would reasonably be likely to be inconsistent with its fiduciary obligations to the stockholders of Seller under applicable laws of the State of Georgia. Seller will keep Purchaser fully informed of amendments or proposed amendments to any such Acquisition Proposal.
(c) The Board of Directors of Seller (i) shall not withdraw or modify or propose to withdraw or modify, in any manner adverse to Purchaser, the approval or recommendation of the Board of Directors of this Agreement or (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal, (iii) engage unless, in discussions with any person with respect to any Acquisition Proposaleach case, except as to the existence Seller's Board of these provisionsDirectors determines in good faith, (iv) approvebased on advice of outside legal counsel, endorse or recommend any that such Acquisition Proposal or is a Superior Offer and the failure to take such action would reasonably be likely to be inconsistent with its fiduciary duties under applicable laws of the State of Georgia.
(vd) enter into any letter of intent or similar document or any contract agreement or commitment contemplating or otherwise relating to any The term "Superior Offer" means an Acquisition Proposal; provided, however, Proposal that nothing contained in this Agreement shall prohibit or restrict the Board of Directors determines in good faith (i) is more favorable to Seller's stockholders from a financial point of view than the Company from furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited (from and after the date terms of this Agreement, (ii) Superior Offer. The Company shall provide Parent with a copy of any correspondence to be delivered by the Company in connection with such Superior Offer prior to sending such correspondence to any third party (but not any attachments thereto previously provided by the Company to Parent in connection herewith). Except for discussions, negotiations and due diligence with DJL and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consent, the Company and its Subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its Subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 4.03 by the Company.
(b) In addition to the obligations of the Company set forth in paragraph (a) of this Section 4.03, the Company as promptly as practicable shall advise Parent orally and in writing of any Acquisition Proposal or any request for non-public information or inquiry which the Company reasonably believes would lead to an Acquisition Proposal, the material terms and conditions of such Acquisition Proposal, request or inquiryif accepted, is reasonably likely to be consummated, taking into accounting, legal, financial, regulatory and other aspects of the Acquisition Proposal and the identity of person making the person or group making any such Acquisition Proposal, request or inquiry. The Company will keep Parent informed and (iii) after consultation with its financial advisor and legal counsel and such other matters as promptly as practicable in all material respects the Board of the status Directors deems relevant, and after considering applicable provisions of any state law, that failure to approve such Acquisition Proposal, request or inquiryProposal could reasonably be expected to result in a breach of its fiduciary duties under applicable law.
Appears in 1 contract
Sources: Asset Purchase Agreement (Harrys Farmers Market Inc)
No Solicitations. (a) Except for discussionsThe Company represents and warrants that it has terminated any discussions or negotiations relating to, negotiations and due diligence with DJ Limited or that may be reasonably expected to lead to, any Acquisition Proposal ("DJL"as hereinafter defined) and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that will promptly request the return of all confidential information regarding the Company shall not consummate such offering without Parent's consent, from and after provided to any third party prior to the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article XIIthe terms of any confidentiality agreements. Except as permitted by this Agreement, the Company and its Subsidiaries will shall not, nor will they and shall not authorize or permit any Company Subsidiary or any of their respective officers, directors, affiliates directors or employees or any investment banker, attorney financial advisor, attorney, accountant or other advisor or representative retained by any of them it to, directly or indirectly, (i) solicit, initiate, initiate or encourage or induce the making, submission or announcement (including by way of any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any person any furnishing non-public information with respect toinformation), or take any other action to facilitate facilitate, any inquiries or the making of any proposal that constitutes an Acquisition Proposal, or may (ii) participate in any discussions or negotiations regarding an Acquisition Proposal. Notwithstanding anything to the contrary in this Agreement, if the Company receives an Acquisition Proposal that was unsolicited or that did not otherwise result from a breach of this Section 7.3(a), and the Company Board determines in good faith (after consulting with its outside legal counsel and its financial advisor) that such Acquisition Proposal is reasonably be expected likely to lead toto a Superior Proposal (as defined below), the Company (x) may furnish non-public information with respect to the Company and the Company Subsidiaries to the person who made such Acquisition Proposal (a "Third Party") and (y) may participate in negotiations regarding such Acquisition Proposal. Notwithstanding anything to the contrary in this Agreement, the Company will notify Parent after receipt of any Acquisition Proposal, but shall not be required to disclose to Parent or Acquisition Sub the identity of the Third Party making any such Acquisition Proposal and shall have no duty to notify or update Parent or Acquisition Sub on the status of discussions or negotiations (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to including the existence status of these provisions, (iv) approve, endorse or recommend any such Acquisition Proposal or any amendments or proposed amendments thereto) between the Company and such Third Party.
(vb) enter into any letter The Board of intent Directors of the Company shall not withdraw or similar document modify, or any contract agreement propose to withdraw or commitment contemplating modify, in a manner adverse to Parent or otherwise relating to any Acquisition Proposal; providedSub, however, that nothing contained in its approval or recommendation of this Agreement shall prohibit or restrict the Offer or the Merger unless the Board of Directors of the Company shall have received an Acquisition Proposal reasonably likely to lead to a Superior Proposal and shall have determined in good faith, after consulting with its outside legal counsel and its financial advisor, that this Agreement or the Offer or the Merger is no longer in the best interests of the Company's stockholders and that such withdrawal or modification is required to satisfy its fiduciary duties to the Company's stockholders under applicable law.
(c) Nothing contained in this Section 7.3 shall prohibit the Company from furnishing information at any time taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or entering into discussions Rule 14e-2 promulgated under the Exchange Act or negotiations with, making any person or entity that makes an unsolicited disclosure required by Rule 14a-9 promulgated under the Exchange Act.
(from and after the date of d) As used in this Agreement, the term "Acquisition Proposal" shall mean any proposed or actual (i) Superior Offer. The Company shall provide Parent with a copy merger, consolidation or similar transaction involving the Company, (ii) sale, lease or other disposition, directly or indirectly, by merger, consolidation, share exchange or otherwise, of any correspondence to be delivered assets of the Company or the Company Subsidiaries representing 15% or more of the consolidated assets of the Company and the Company Subsidiaries, (iii) issue, sale or other disposition by the Company of (including by way of merger, consolidation, share exchange or any similar transaction) securities (or options, rights or warrants to purchase, or securities convertible into, such securities) representing 15% or more of the votes associated with the outstanding securities of the Company, (iv) tender offer or exchange offer in connection which any person shall acquire beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act), or the right to acquire beneficial ownership, or any "group" (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, 15% or more of the outstanding shares of Company Common Stock, (v) recapitalization, restructuring, liquidation, dissolution, or other similar type of transaction with such Superior Offer prior respect to sending such correspondence the Company or (vi) transaction which is similar in form, substance or purpose to any third party (but not any attachments thereto previously provided by of the Company to Parent in connection herewith). Except for discussions, negotiations and due diligence with DJL and with investors with whom it works related to a $2.5 million convertible debt offering, foregoing transactions; provided, however, that the Company term "Acquisition Proposal" shall not consummate such offering without Parent's consent, include the Company and its Subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its Subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 4.03 by the Company.
(b) In addition to the obligations of the Company set forth in paragraph (a) of this Section 4.03, the Company as promptly as practicable shall advise Parent orally and in writing of any Acquisition Proposal or any request for non-public information or inquiry which the Company reasonably believes would lead to an Acquisition Proposal, the material terms and conditions of such Acquisition Proposal, request or inquiry, Merger and the identity of the person or group making any such Acquisition Proposal, request or inquiry. The Company will keep Parent informed as promptly as practicable in all material respects of the status of any such Acquisition Proposal, request or inquiryother Transactions.
Appears in 1 contract
No Solicitations. (a) Except for discussions, negotiations and due diligence with DJ Limited ("DJL") and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consent, from From and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article XIIhereof, the Company and its Subsidiaries (i) CILCORP will not, nor and will they not authorize or permit any of their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them its Representatives to, directly or indirectly, (i) solicit, initiate, initiate or encourage or induce the making, submission or announcement (including by way of any Acquisition Proposal, (iifurnishing information) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate knowingly any inquiries or the making of any proposal that which constitutes or may reasonably be expected to lead toto an Acquisition Proposal (as defined in Section 7.8(b) hereof) from any person, or engage in any discussion or negotiations relating thereto and (ii) neither the Board of Directors of CILCORP nor any committee thereof shall (A) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to AES, the approval or recommendation by such Board of Directors or such committee of the Merger or this Agreement, (B) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (vC) cause CILCORP or any CILCORP Subsidiary to enter into any letter of intent or similar document or any contract intent, agreement in principle, acquisition agreement or commitment contemplating or otherwise relating other similar agreement (each, an "Acquisition Agreement") related to any Acquisition Proposal; provided, however, that nothing contained CILCORP may, at any time prior to receipt of CILCORP Stockholders' Approval (the "CILCORP Applicable Period"), (i) in response to an Acquisition Proposal which was not solicited by it or its Representatives and which did not otherwise result from a breach of this Agreement shall prohibit or restrict Section 7.8, if the Board of Directors of the Company from furnishing information to or entering into discussions or negotiations withCILCORP (x) reasonably believes in good faith, any person or entity that makes an unsolicited (from and after the date of this Agreement) Superior Offer. The Company shall provide Parent consultation with a copy of any correspondence to be delivered by the Company in connection with such Superior Offer prior to sending such correspondence to any third party (but not any attachments thereto previously provided by the Company to Parent in connection herewith). Except for discussions, negotiations and due diligence with DJL and with investors with whom it works related to a $2.5 million convertible debt offering, provided, howeverits financial advisors, that the Company shall not consummate an Acquisition Proposal may be a Superior Proposal (as defined in Section 7.8(b) hereof) and (y) determines in good faith, after consultation with its financial advisors and outside counsel, that failing to take such offering without Parent's consent, the Company and its Subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its Subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its Subsidiaries shall action could reasonably be deemed expected to be a breach of its fiduciary duties to CILCORP's stockholders under applicable law, and subject to providing AES with prior written notice of its decision to take such action (the "CILCORP Notice") and compliance with Section 7.8(c) hereof, (1) furnish information with respect to CILCORP and the CILCORP Subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement and (2) participate in discussions or negotiations regarding such Superior Proposal, (ii) comply with Rule 14e-2 promulgated under the Exchange Act with regard to a tender or exchange offer (provided that, except in connection with a termination of this Section 4.03 by the Company.
Agreement pursuant to clause (b) In addition to the obligations of the Company set forth in paragraph (aiii) of this Section 4.03proviso, neither CILCORP nor its Board of Directors nor any committee thereof shall withdraw or modify, or propose publicly to withdraw or modify, its position with respect to this Agreement or the Company as promptly as practicable shall advise Parent orally and in writing of any Acquisition Proposal Merger or any request for non-public information approve or inquiry which the Company reasonably believes would lead recommend, or propose publicly to approve or recommend, an Acquisition Proposal), and/or (iii) in the event that during the CILCORP Applicable Period the Board of Directors of CILCORP reasonably believes in good faith, after consultation with its financial advisors and outside counsel, (x) that it has received an Acquisition Proposal that constitutes a Superior Proposal and (y) that failure to terminate this Agreement and accept such Superior Proposal could reasonably be expected to be a breach of its fiduciary duties to CILCORP's stockholders under applicable law, by action of the Board of Directors of CILCORP (subject to this sentence and Section 9.1(d)(ii) hereof), terminate this Agreement (and, following the exercise of such termination right, withdraw or modify in any adverse manner its approval or recommendation of this Agreement or the Merger, and approve or recommend any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving CILCORP or any such CILCORP Subsidiary, other than the transactions contemplated by this Agreement), but only at a time that is during the CILCORP Applicable Period and is after the third business day following AES' receipt of written notice advising AES that the Board of Directors of CILCORP is prepared to accept a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the person making such Superior Proposal. CILCORP shall immediately cease and terminate any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any persons conducted heretofore by CILCORP or its Representatives with respect to any of the foregoing.
(b) As used herein, (i) "Acquisition Proposal, request or " shall mean any inquiry, proposal or offer from any person relating to any direct or indirect acquisition or purchase of a business (a "Material Business") that constitutes 15% or more of the net revenues, net income or the assets (including equity securities) of CILCORP and the identity CILCORP Subsidiaries, taken as a whole, or 15% or more of any class of voting securities of CILCORP or any CILCORP Subsidiary owning, operating or controlling a Material Business, any tender offer or exchange offer that it consummated would result in any person beneficially owing 15% or more of any class of voting securities of CILCORP or any such CILCORP Subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving CILCORP or any such CILCORP Subsidiary, other than the transactions contemplated by this Agreement; provided, however, that no transaction permitted pursuant to Section 6.1(f) hereof shall be deemed an Acquisition Proposal for any purpose and (ii) a "Superior Proposal" shall mean any proposal made by a third party to acquire, directly or indirectly, including pursuant to a tender offer, exchange offer, merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction, for consideration consisting of cash and/or securities, more than 50% of the person or group making any such Acquisition Proposal, request or inquiry. The Company will keep Parent informed as promptly as practicable in all material respects combined voting power of the status shares of CILCORP Common Stock then outstanding or all or substantially all the assets of CILCORP which the Board of Directors of CILCORP determines in its good faith judgment, after consultation with its financial advisors and outside counsel, to be more favorable to CILCORP's Stockholders (taking into account any changes to the financial terms of this Agreement proposed by AES in response to such Acquisition Proposalproposal and all financial and strategic considerations, request or inquiryincluding relevant legal, financial, regulatory and other aspects of the proposal and the third party making such proposal and the conditions and the prospects for completion of such proposal, the strategic direction and benefits sought by CILCORP and any changes to this Agreement proposed by AES in response to such proposal) than the Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Aes Corporation)
No Solicitations. (a) Except for discussionsThe Company represents and warrants that it has terminated any discussions or negotiations relating to, negotiations and due diligence with DJ Limited or that may be reasonably expected to lead to, any Acquisition Proposal ("DJL"as hereinafter defined) and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that will promptly request the return of all confidential information regarding the Company shall not consummate such offering without Parent's consent, from and after provided to any third party prior to the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article XIIthe terms of any confidentiality agreements. Except as permitted by this Agreement, the Company and its Subsidiaries will shall not, nor will they and shall not authorize or permit any Company Subsidiary or any of their respective officers, directors, affiliates directors or employees or any investment banker, attorney financial advisor, attorney, accountant or other advisor or representative retained by any of them it to, directly or indirectly, (i) solicit, initiate, initiate or encourage or induce the making, submission or announcement (including by way of any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any person any furnishing non-public information with respect toinformation), or take any other action to facilitate facilitate, any inquiries or the making of any proposal that constitutes an Acquisition Proposal, or may (ii) participate in any discussions or negotiations regarding an Acquisition Proposal. Notwithstanding anything to the contrary in this Agreement, if the Company receives an Acquisition Proposal that was unsolicited or that did not otherwise result from a breach of this Section 7.3(a), and the Company Board determines in good faith (after consulting with its outside legal counsel and its financial advisor) that such Acquisition Proposal is reasonably be expected likely to lead toto a Superior Proposal (as defined below), the Company (x) may furnish non-public information with respect to the Company and the Company Subsidiaries to the person who made such Acquisition Proposal (a "Third Party") and (y) may participate in negotiations regarding such Acquisition Proposal. Notwithstanding anything to the contrary in this Agreement, the Company will notify Parent after receipt of any Acquisition Proposal, but shall not be required to disclose to Parent or Acquisition Sub the identity of the Third Party making any such Acquisition Proposal and shall have no duty to notify or update Parent or Acquisition Sub on the status of discussions or negotiations (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to including the existence status of these provisions, (iv) approve, endorse or recommend any such Acquisition Proposal or any amendments or proposed amendments thereto) between the Company and such Third Party.
(vb) enter into any letter The Board of intent Directors of the Company shall not withdraw or similar document modify, or any contract agreement propose to withdraw or commitment contemplating modify, in a manner adverse to Parent or otherwise relating to any Acquisition Proposal; providedSub, however, that nothing contained in its approval or recommendation of this Agreement shall prohibit or restrict the Offer or the Merger unless the Board of Directors of the Company from furnishing information shall have received an Acquisition Proposal reasonably likely to or entering into discussions or negotiations with, any person or entity that makes an unsolicited (from and after the date of this Agreement) Superior Offer. The Company shall provide Parent with a copy of any correspondence to be delivered by the Company in connection with such Superior Offer prior to sending such correspondence to any third party (but not any attachments thereto previously provided by the Company to Parent in connection herewith). Except for discussions, negotiations and due diligence with DJL and with investors with whom it works related lead to a $2.5 million convertible debt offeringSuperior Proposal and shall have determined in good faith, provided, howeverafter consulting with its outside legal counsel and its financial advisor, that this Agreement or the Company shall not consummate such offering without Parent's consent, Offer or the Company and its Subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting Merger is no longer in the foregoing, it is understood that any violation best interests of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its Subsidiaries or any investment banker, attorney or other advisor or representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 4.03 by the Company.
(b) In addition to the obligations of the Company set forth in paragraph (a) of this Section 4.03, the Company as promptly as practicable shall advise Parent orally Company"s stockholders and in writing of any Acquisition Proposal or any request for non-public information or inquiry which the Company reasonably believes would lead to an Acquisition Proposal, the material terms and conditions of that such Acquisition Proposal, request or inquiry, and the identity of the person or group making any such Acquisition Proposal, request or inquiry. The Company will keep Parent informed as promptly as practicable in all material respects of the status of any such Acquisition Proposal, request or inquiry.withdrawal or
Appears in 1 contract
Sources: Merger Agreement (Safety 1st Inc)
No Solicitations. (a) Except for discussions, negotiations and due diligence with DJ Limited ("DJL") and with investors with whom it works related Prior to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consent, from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article XIIClosing Date, the Company and agrees that neither it nor any of its Subsidiaries will, and the Company will not, nor will they authorize or permit any of use its commercially reasonable efforts to cause their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them Representatives not to, directly or indirectly, (i) initiate, solicit, initiateencourage, encourage accept or induce take any other action knowingly to facilitate, any inquiries or the makingmaking of, submission or announcement of any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, any proposal or offer from anyone not a party hereto (a "Third Party") with respect to, or furnish to any person or disclose any non-public information with respect to, regarding the Company or take its Subsidiaries to any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead toThird Party in connection with, any Acquisition ProposalProposal (as defined below). Notwithstanding the foregoing, (iiix) engage in discussions with any person with respect response to any an unsolicited Acquisition Proposal, except as the Company may take and disclose to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2 under the Exchange Act, and (y) to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract agreement or commitment contemplating or otherwise relating to any Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prohibit or restrict extent the Board of Directors of the Company from furnishing information (the "Board") is advised by its counsel that it is required by its fiduciary obligations to or entering into discussions or negotiations withdo so, at any person or entity that makes time prior to approval by the Company's stockholders of the Transactions: (i) the Company may, in response to an unsolicited (from and after the date of this Agreement) Superior Offer. The Company shall provide Parent request, furnish non-public information with a copy of any correspondence respect to be delivered by the Company in connection with such Superior Offer prior to sending such correspondence or its Subsidiaries to any third party Third Party that the Board in good faith determines is reasonably capable of consummating the transactions (a "Qualified Third Party") pursuant to a customary confidentiality agreement and discuss that information (but not any attachments thereto previously provided an Acquisition Proposal) with the Qualified Third Party and (ii) upon receipt by the Company to Parent in connection herewith). Except for discussionsCompany, negotiations and due diligence with DJL and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consent, the Company and its Subsidiaries will immediately cease any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officer, director or employee of the Company or any of its Subsidiaries or any investment bankerof their respective Representatives of an Acquisition Proposal from a Qualified Third Party, attorney if (A) the Company has complied fully and in a timely manner with its obligations under Section 5.05(b) to notify the Investors of the receipt of the Acquisition Proposal and (B) the Board has determined in good faith that the transaction contemplated by the Acquisition Proposal, if consummated, would constitute an Overbid Transaction, and (C) the Company has delivered an Overbid Notice to the Investors advising them of the determination by the Board that the transaction contemplated by the Acquisition Proposal would constitute an Overbid Transaction (which notice will include a statement of the Overbid Amount involved in that transaction and be accompanied by copies of any form of definitive agreement or other advisor or representative of documentation the Third Party proposes to enter into in connection with the Acquisition Proposal), then the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 4.03 by may participate in discussions and negotiations with the CompanyQualified Third Party regarding the Acquisition Proposal.
(b) In addition to If the obligations Company, any of the Company set forth in paragraph (a) of this Section 4.03, the Company as promptly as practicable shall advise Parent orally and in writing of any Acquisition Proposal its Subsidiaries or any of their respective Representatives directly or indirectly receives a request for non-public information from a Qualified Third Party or inquiry which the Company reasonably believes would lead to an Acquisition Proposal, the Company (i) will notify the Investors of the existence of such request or the Acquisition Proposal within two business days after the Company receives or otherwise learns of it, will state in the notice the identity of such Qualified Third Party and describe all material terms and conditions of such regarding the request or Acquisition Proposal, and thereafter keep the Investors reasonably informed of all facts and material circumstances relating to such request or inquiryAcquisition Proposal and the Company's actions relating thereto, and the identity (ii) promptly advise such Qualified Third Party or Person making an Acquisition Proposal of the person or group making any such Acquisition Proposalterms of this Section 5.05.
(c) If prior to the receipt of Company Stockholder Approval (i) the Company delivers an Overbid Notice to the Investors, request or inquiry. The (ii) the Investors do not notify the Company will keep Parent informed as promptly as practicable in all material respects writing within five Business Days after receipt of the status Overbid Notice that they are willing to amend the terms of this Agreement and the Transaction Agreements in order to increase the purchase price for the Securities by at least the Overbid Amount, (iii) the terms of the Acquisition Proposal are not modified in a manner adverse to the Company or the Operating Partnerships and (iv) the Company has paid the Termination Fee to the Investors, then the Company may terminate this Agreement and enter into an agreement with the Qualified Third Party with respect to the Overbid Transaction described in the Overbid Notice that the Company delivered to the Investors.
(d) Nothing contained in this Section 5.05 shall apply to any such Acquisition Proposalsale or proposed sale by the Company of the Properties, request individually or inquiryin the aggregate.
Appears in 1 contract
Sources: Master Investment Agreement (American Real Estate Investment Corp)
No Solicitations. (a) Except for discussionsNo party hereto shall, negotiations and due diligence with DJ Limited ("DJL") and with investors with whom it works related to a $2.5 million convertible debt offeringeach such party shall cause its subsidiaries not to, provided, however, that the Company shall not consummate such offering without Parent's consent, from and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article XII, the Company and its Subsidiaries will not, nor will they authorize or permit any of their respective officersits Representatives to, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them and shall use its best efforts to cause such persons not to, directly or indirectly, (i) solicit, initiate, encourage solicit or induce the making, submission or announcement of any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any person any non-public information with respect toencourage, or take any other action to facilitate any inquiries or the making of any offer or proposal that constitutes or may is reasonably be expected likely to lead toto any Takeover Proposal (as defined below), or, in the event of any Acquisition unsolicited Takeover Proposal, (iii) engage in discussions with negotiations or provide any confidential information or data to any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any contract agreement or commitment contemplating or otherwise relating to any Acquisition Takeover Proposal; provided. Each party shall notify the other orally and in writing of any such inquiries, howeveroffers or proposals (including, that nothing contained in this Agreement shall prohibit or restrict without limitation, the Board terms and conditions of Directors any such proposal and the identity of the Company from furnishing person making it) within 24 hours of the receipt thereof and shall give the other five (5) days' advance notice of any agreement to be entered into with or any information to or entering into discussions or negotiations with, be supplied to any person making such inquiry, offer or entity that makes an unsolicited (from proposal. Each party hereto shall immediately cease and after the date of this Agreement) Superior Offer. The Company shall provide Parent with a copy of any correspondence cause to be delivered by the Company in connection with such Superior Offer prior to sending such correspondence to any third party (but not any attachments thereto previously provided by the Company to Parent in connection herewith). Except for discussions, negotiations and due diligence with DJL and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consent, the Company and its Subsidiaries will immediately cease any and terminated all existing activitiesdiscussions and negotiations, discussions or negotiations if any, with any parties other persons conducted heretofore with respect to any Acquisition Takeover Proposal. Without limiting Notwithstanding anything in this Section 7.11 to the foregoingcontrary, it is understood that any violation of the restrictions set forth in the preceding two sentences by any officerevent of an unsolicited Takeover Proposal, director unless the DRI Shareholders' Approval and the CNG Shareholders' Approval have both been obtained, DRI or employee of the Company CNG may participate in discussions or any of its Subsidiaries or any investment bankernegotiations with, attorney or other advisor or representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 4.03 by the Company.
(b) In addition furnish information to, and afford access to the obligations of the Company set forth in paragraph (a) of this Section 4.03properties, the Company as promptly as practicable shall advise Parent orally books and in writing of any Acquisition Proposal or any request for non-public information or inquiry which the Company reasonably believes would lead to an Acquisition Proposal, the material terms and conditions records of such Acquisition Proposalparty and its subsidiaries to any person in connection with a possible Takeover Proposal with respect to such party by such person, request or inquiry, if and to the identity 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 any the Takeover Proposal will have adequate sources of financing to consummate the Takeover Proposal and that the Takeover Proposal is more favorable to such Acquisition Proposalparty's shareholders than the Merger, request or inquiry. The Company will keep Parent informed as promptly as practicable (B) the Board of Directors of such party is advised in all material respects a written, reasoned opinion of the status of any such Acquisition Proposal, request or inquiry.outside counsel that a
Appears in 1 contract
No Solicitations. (a) Except for discussionsBCB shall not, negotiations and due diligence with DJ Limited ("DJL") and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consent, from and after the date cause each of this Agreement until the Effective Time or termination of this Agreement pursuant to Article XII, the Company its Subsidiaries and its Subsidiaries will not, nor will they authorize or permit any of and their respective officers, directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them Representatives not to, directly or indirectly, indirectly (i) solicit, initiate, encourage or induce the makingfacilitate (including by way of furnishing information), submission or announcement of take any other action designed to facilitate, any inquiries or proposals regarding any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, regarding an Alternative Transaction or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (viii) enter into any letter of intent agreement regarding any Alternative Transaction or similar document or any contract agreement or commitment contemplating or otherwise relating to any Acquisition Proposal; provided, however, that if BCB is not otherwise in violation of this Section 8.5, nothing contained in this Agreement shall prohibit or restrict prevent the BCB Board of Directors of from, pursuant to a customary confidentiality agreement that contains provisions that are no less favorable to BCB than those contained in the Company from furnishing Confidentiality Agreement, providing information to to, and engaging in such negotiations or entering into discussions or negotiations with, any a person or entity that makes an unsolicited (who shall have made from and after the date of this AgreementAgreement a bona fide, unsolicited written Acquisition Proposal, with respect to such Acquisition Proposal, directly or through representatives, if the BCB Board of Directors, after consulting with and considering the advice of its outside counsel and financial advisor, determines in good faith that its failure to engage in any such negotiations or discussions would be reasonably likely to be a violation of its fiduciary duties under applicable Law.
(b) Superior Offer. The Company BCB shall provide Parent with a copy notify FBMS promptly (but in no event later than 48 hours) after receipt of any correspondence to be delivered by the Company in connection with such Superior Offer prior to sending such correspondence Acquisition Proposal or any material modification of or material amendment to any third party Acquisition Proposal, or any request for nonpublic information relating to BCB or any of its Subsidiaries or for access to the properties, books or records of BCB or any of its Subsidiaries by any Person that has made, or to BCB’s Knowledge may be considering making, an Acquisition Proposal. Such notice to FBMS shall be made orally and in writing, and shall indicate the identity of the Person making the Acquisition Proposal or intending to make or considering making an Acquisition Proposal or requesting non-public information or access to the books and records of BCB or any of its Subsidiaries, and the material terms of any such Acquisition Proposal or modification or amendment to an Acquisition Proposal and indicating whether any such Acquisition Proposal or modification or amendment to an Acquisition Proposal is a Superior Proposal. BCB shall notify FBMS promptly (but not in no event later than 24 hours) of any attachments thereto previously provided by material changes in the Company to Parent status and any material changes or modifications in connection herewith). Except for discussionsthe terms of any such Acquisition Proposal, negotiations and due diligence with DJL and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consent, the Company indication or request.
(c) BCB and its Subsidiaries will shall immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any parties Persons (other than FBMS) conducted heretofore with respect to any Acquisition Proposal. Without limiting of the foregoing, it and shall use reasonable best efforts to cause all Persons other than FBMS who have been furnished confidential information regarding BCB in connection with the solicitation of or discussions regarding an Acquisition Proposal or Alternative Transaction within the 12 months prior to the date hereof promptly to return or destroy such information. BCB shall not, and shall cause its Subsidiaries not to, release any third party from, and shall enforce, the confidentiality and standstill provisions of any agreement to which BCB or its Subsidiaries is understood a party that any violation remains in effect as of the restrictions set forth in the preceding two sentences by date hereof, and shall immediately take all steps necessary to terminate any officer, director or employee of the Company or approval that may have been heretofore given under any of its Subsidiaries or such provisions authorizing any investment banker, attorney or other advisor or representative of the Company or any of its Subsidiaries shall be deemed Person to be a breach of this Section 4.03 by the Companymake an Acquisition Proposal.
(bd) In addition Notwithstanding anything herein to the obligations contrary, at any time prior to the BCB Shareholders’ Meeting, if BCB has received a Superior Proposal (after giving effect to the terms of any revised offer by FBMS pursuant to this Section 8.5(d)), the Company set forth Board of Directors of BCB may, in paragraph connection with such Superior Proposal, make a Change in Recommendation, if and only to the extent that the Board of Directors of BCB has determined in good faith, after consultation with outside counsel and its financial advisor, that the failure to take such action would cause it to violate its fiduciary duties under applicable law; provided, that the Board of Directors of BCB may not effect a Change in Recommendation unless:
(ai) BCB shall have received a bona fide written Acquisition Proposal and the Board of Directors of BCB shall have concluded in good faith that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to by FBMS;
(ii) BCB shall have provided prior written notice to FBMS at least five Business Days in advance (the “Notice Period”) of this Section 4.03taking such action, the Company as promptly as practicable which notice shall advise Parent orally and in writing FBMS that the Board of any Acquisition Proposal or any request for non-public information or inquiry which the Company reasonably believes would lead to an Acquisition Directors of BCB has received a Superior Proposal, specify the material terms and conditions of such Acquisition Proposal, request or inquiry, and Superior Proposal (including the identity of the person Person or group making the Superior Proposal);
(iii) during the Notice Period, BCB shall, and shall cause its financial advisor and outside counsel to, negotiate with FBMS in good faith (to the extent FBMS desires to so negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Board of Directors of BCB shall have concluded in good faith that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by FBMS, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal and such revisions are material, request or inquiryBCB shall deliver a new written notice to FBMS and shall comply with the requirements of this Section 8.5(d) with respect to such new written notice, except that the new Notice Period shall two Business Days. The Company will keep Parent informed as promptly as practicable In the event that the Board of Directors of BCB does not make the determination referred to in all material respects clause (iv) of this paragraph and thereafter seeks to effect a Change in Recommendation, the status of procedures referred to above shall apply anew and shall also apply to any such Acquisition Proposal, request or inquirysubsequent Change in Recommendation.
Appears in 1 contract
No Solicitations. (a) Except for discussionsCVBK shall not, negotiations and due diligence with DJ Limited ("DJL") and with investors with whom it works related to a $2.5 million convertible debt offering, provided, however, that the Company shall not consummate such offering without Parent's consent, from and after the date cause each of this Agreement until the Effective Time or termination of this Agreement pursuant to Article XII, the Company its Subsidiaries and its Subsidiaries will not, nor will they authorize or permit any of and their respective officersRepresentatives, directors, affiliates or employees or any investment bankerofficers and employees, attorney or other advisor or representative retained by any of them not to, directly or indirectly, indirectly (i) solicit, initiate, encourage or induce the makingfacilitate (including by way of furnishing information), submission or announcement of take any other action designed to facilitate, any inquiries or proposals regarding any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, regarding an Alternative Transaction or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in discussions with any person with respect to any Acquisition Proposal, except as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal or (viii) enter into any letter of intent agreement regarding any Alternative Transaction or similar document or any contract agreement or commitment contemplating or otherwise relating to any Acquisition Proposal; provided, however, that if CVBK is not otherwise in violation of this Section 8.5, nothing contained in this Agreement shall prohibit or restrict prevent the CVBK Board of Directors of from, pursuant to a customary confidentiality agreement that contains provisions that are no less favorable to CVBK than those contained in the Company from furnishing Confidentiality Agreement, providing information to to, and engaging in such negotiations or entering into discussions or negotiations with, any a person or entity that makes an unsolicited (who shall have made from and after the date of this AgreementAgreement a bona fide, unsolicited written Acquisition Proposal, with respect to such Acquisition Proposal, directly or through Representatives, if the CVBK Board of Directors, after consulting with and considering the advice of its outside counsel and financial advisor, determines in good faith that its failure to engage in any such negotiations or discussions would be reasonably likely to be a violation of its fiduciary duties under applicable Law.
(b) Superior Offer. The Company CVBK shall provide Parent with a copy notify CFFI promptly (but in no event later than 24 hours) after receipt of any correspondence to be delivered by the Company in connection with such Superior Offer prior to sending such correspondence Acquisition Proposal or any material modification of or material amendment to any third party (but not Acquisition Proposal, or any attachments thereto previously provided request for nonpublic information relating to CVBK or any of its Subsidiaries or for access to the properties, books or records of CVBK or any of its Subsidiaries by any Person that has made, or to CVBK’s Knowledge may be considering making, an Acquisition Proposal. Such notice to CFFI shall be made orally and in writing, and shall indicate the Company identity of the Person making the Acquisition Proposal or intending to Parent in connection herewith). Except for discussionsmake or considering making an Acquisition Proposal or requesting non-public information or access to the books and records of CVBK or any of its Subsidiaries, negotiations and due diligence with DJL the material terms of any such Acquisition Proposal or modification or amendment to an Acquisition Proposal and with investors with whom it works related indicating whether any such Acquisition Proposal or modification or amendment to a $2.5 million convertible debt offeringAcquisition Proposal is a Superior Proposal. CVBK shall keep CFFI fully informed, providedon a current basis, howeverof any material changes in the status and any material changes or modifications in the terms of any such Acquisition Proposal, that the Company shall not consummate such offering without Parent's consent, the Company indication or request.
(c) CVBK and its Subsidiaries will shall immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any parties Persons (other than CFFI and CFFI Merger Sub) conducted heretofore with respect to any Acquisition Proposal. Without limiting of the foregoing, it and shall use reasonable best efforts to cause all Persons other than CFFI and CFFI Merger Sub who have been furnished confidential information regarding CVBK in connection with the solicitation of or discussions regarding an Acquisition Proposal or Alternative Transaction within the 12 months prior to the date hereof promptly to return or destroy such information. CVBK shall not, and shall cause its Subsidiaries not to, amend or release any third party from, and shall enforce, the confidentiality and standstill provisions of any agreement to which CVBK or its Subsidiaries is understood a party that any violation remains in effect as of the restrictions set forth in the preceding two sentences by date hereof, and shall immediately take all steps necessary to terminate any officer, director or employee of the Company or approval that may have been heretofore given under any of its Subsidiaries or such provisions authorizing any investment banker, attorney or other advisor or representative of the Company or any of its Subsidiaries shall be deemed Person to be a breach of this Section 4.03 by the Companymake an Acquisition Proposal.
(bd) In addition Notwithstanding anything herein to the obligations contrary, at any time prior to the CVBK Shareholders’ Meeting, if the CVBK has received a Superior Proposal (after giving effect to the terms of any revised offer by CFFI pursuant to this Section 8.5(d)), the Company set forth Board of Directors of CVBK may, in paragraph connection with such Superior Proposal, make a Change in Recommendation, if and only to the extent that the Board of Directors of CVBK has determined in good faith, after consultation with outside counsel and its financial advisor, that the failure to take such action would cause it to violate its fiduciary duties under applicable Law; provided, that the Board of Directors of CVBK may not effect a Change in Recommendation unless:
(ai) CVBK shall have received an unsolicited bona fide written Acquisition Proposal and the Board of Directors of CVBK shall have concluded in good faith that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to by CFFI;
(ii) CVBK shall have provided prior written notice to CFFI at least five calendar days in advance (the “Notice Period”) of this Section 4.03taking such action, the Company as promptly as practicable which notice shall advise Parent orally and in writing CFFI that the Board of any Acquisition Proposal or any request for non-public information or inquiry which the Company reasonably believes would lead to an Acquisition Directors of CVBK has received a Superior Proposal, specify the material terms and conditions of such Acquisition Proposal, request or inquiry, and Superior Proposal (including the identity of the person Person or group making the Superior Proposal) and attach copies of all documents received by CVBK or Central Virginia Bank in connection with such Superior Proposal and promptly provide to CFFI copies of any revisions or updates thereto;
(iii) during the Notice Period, CVBK shall, and shall cause its Representatives to, negotiate with CFFI in good faith (to the extent CFFI desires to so negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal; and
(iv) the Board of Directors of CVBK shall have concluded in good faith that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by CFFI, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal and such revisions are material, request or inquiryCVBK shall deliver a new written notice to CFFI and shall comply with the requirements of this Section 8.5(d) with respect to such new written notice, except that the new Notice Period shall be two calendar days. The Company will keep Parent informed as promptly as practicable In the event that the Board of Directors of CVBK does not make the determination referred to in all material respects clause (iv) of this paragraph and thereafter seeks to effect a Change in Recommendation, the status of procedures referred to above shall apply anew and shall also apply to any such Acquisition Proposal, request or inquirysubsequent Change in Recommendation.
Appears in 1 contract