No Solicitations. (a) The Company represents and warrants that it has terminated, and has caused its subsidiaries and affiliates, and their respective officers, directors, employees, investment bankers, attorneys, accountants and other advisors or representatives to terminate, any activities, discussions or negotiations relating to, or that may be reasonably be expected to lead to, any Acquisition Proposal (as hereinafter defined) and will promptly request the return of all confidential information regarding the Company provided to any third party prior to the date of this Agreement pursuant to the terms of any confidentiality agreements. From the date hereof until the termination hereof and except as permitted by the following provisions of this Section 7.1, the Company shall not, and shall not authorize or permit any of its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other advisor or Representative retained by it to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing non-public information), or take any other action to facilitate, any inquiries or the making of any proposal that constitutes an Acquisition Proposal or any inquiries or making of any proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, or (ii) participate in any activities, discussions or negotiations regarding an Acquisition Proposal; provided, however, that subject to compliance by the Company with the provisions -------- ------- of Section 7.1(b), the Company Board may furnish information to, or enter into discussions or negotiations with, any person that makes an unsolicited written Acquisition Proposal if, and only to the extent that (A) the Company Board, after consultation with its outside legal counsel, determines in good faith that such action is necessary for the Company Board to comply with its fiduciary duties to the Company's stockholders under applicable law, (B) such Acquisition Proposal is not subject to any financing contingencies or is, in the good faith judgment of the Company Board after consultation with a nationally recognized financial advisor, reasonably capable of being financed, and is at least as likely to be consummated as is the Merger, (C) the Company Board determines in good faith that such Acquisition Proposal, based upon such matters as it deems relevant (including consultation with a nationally recognized financial advisor) would, if consummated, result in a transaction more favorable to the Company's stockholders from a financial point of view than the Merger (any such more favorable Acquisition Proposal being referred to herein as a "Superior Proposal"), (D) the Company receives from such ----------------- person an executed confidentiality agreement in reasonably customary form and (E) at least three (3) business days prior to taking such action, the Company shall provide written notice to Parent to the effect that it is taking such action.
Appears in 1 contract
No Solicitations. (a) The Company represents From and warrants that it has terminated, and has caused its subsidiaries and affiliates, and their respective officers, directors, employees, investment bankers, attorneys, accountants and other advisors or representatives to terminate, any activities, discussions or negotiations relating to, or that may be reasonably be expected to lead to, any Acquisition Proposal (as hereinafter defined) and will promptly request the return of all confidential information regarding the Company provided to any third party prior to after the date of this Agreement pursuant to the terms of any confidentiality agreements. From the date hereof until the termination hereof and except as permitted by the following provisions of this Section 7.1hereof, the Company shall Ambassador will not, and shall will not authorize or permit any of its officers, directors Affiliates or employees or any investment banker, financial advisor, attorney, accountant or other advisor or Representative retained by it Representatives to, directly or knowingly indirectly, (i) solicit, initiate or encourage (including by way of furnishing non-public information), ) or take any other action to facilitate, facilitate knowingly any inquiries or the making of any proposal that which constitutes an Acquisition Proposal or any inquiries or making of any proposal that constitutes, or may reasonably be expected to lead to, to an Acquisition ProposalProposal (as defined herein) from any person, or (ii) participate engage in any activities, discussions discussion or negotiations regarding an relating thereto or accept any Acquisition Proposal; provided, however, that subject notwithstanding any other provision hereof, Ambassador may (i) at any time prior to compliance by the Company with the provisions -------- ------- of Section 7.1(b)time Ambassador's stockholders shall have voted to approve this Agreement, the Company Board may furnish information to, or enter into engage in discussions or negotiations withwith a third party who (without any solicitation, any person that makes an unsolicited written Acquisition Proposal initiation or encouragement, directly or knowingly indirectly, by Ambassador or its Representatives after the date hereof) seeks to initiate such discussions or negotiations and may furnish such third party information concerning Ambassador and its business, properties and assets if, and only to the extent that (A) (x) the Company Board, third party has first made an Acquisition Proposal and the Board of Directors of Ambassador determines in good faith and after consultation with its outside legal counselfinancial advisor, determines that to do so has a reasonable prospect of leading to an Acquisition Proposal that is superior to the Merger and for which financing for the Acquisition Proposal has a reasonable prospect to be obtained (as determined in good faith that such action is necessary for the Company by Ambassador's Board to comply with its fiduciary duties to the Company's stockholders under applicable law, (B) such Acquisition Proposal is not subject to any financing contingencies or is, in the good faith judgment of the Company Board Directors after consultation with a nationally recognized its financial advisor, reasonably capable of being financed, and is at least as likely to be consummated as is the Merger, advisors) (C) the Company Board determines in good faith that such Acquisition Proposal, based upon such matters as it deems relevant (including consultation with a nationally recognized financial advisor) would, if consummated, result in a transaction more favorable to the Company's stockholders from a financial point of view than the Merger (any such more favorable Acquisition Proposal being referred to herein as a "Superior Proposal")) or (y) Ambassador's Board of Directors shall conclude in good faith, (D) the Company receives from such ----------------- person an executed confidentiality agreement in reasonably customary form after considering applicable provisions of state law, and (E) at least three (3) business days prior to taking such action, the Company shall provide written notice to Parent to the effect that it is taking such action.after considering
Appears in 1 contract
Samples: Agreement and Plan of Merger (Ambassador Apartments Inc)
No Solicitations. (a) The Company represents and warrants that it has terminatedUntil the Measurement Date, and has caused its subsidiaries and affiliates, and their respective officers, directors, employees, investment bankers, attorneys, accountants and other advisors or representatives to terminate, any activities, discussions or negotiations relating to, or that may be reasonably be expected to lead to, any Acquisition Proposal (as hereinafter defined) and will promptly request the return of all confidential information regarding neither the Company provided to nor any third party prior to the date of this Agreement pursuant to the terms of any confidentiality agreements. From the date hereof until the termination hereof and except as permitted by the following provisions of this Section 7.1, the Company its Subsidiaries shall not, and shall not authorize or permit any of its officersofficer, directors or employees or any director, employee, investment banker, financial advisor, attorney, accountant or other advisor agent or Representative representative (each, a "Representative") retained by it or acting for or on behalf of the Company or any of its Subsidiaries to, directly or indirectly, (i) initiate, solicit, initiate encourage, or, unless the Board of Directors of the Company believes, after consultation with outside legal counsel, that the failure to take such actions would constitute a breach of the fiduciary duties of the Board of Directors, participate in any negotiations regarding, furnish any confidential information in connection with, endorse or encourage (including by way of furnishing non-public information)otherwise cooperate with, assist, participate in or take any other action to facilitate, any inquiries or facilitate the making of any proposal that constitutes an Acquisition Proposal or any inquiries or making of any proposal that constitutesoffer for, or which may reasonably be expected to lead to, an Acquisition ProposalTransaction, by any Person, or group (ii) participate in any activities, discussions or negotiations regarding an Acquisition Proposala "Potential Acquiror"); provided, however, that subject to compliance by (i) the Company may furnish or cause to be furnished information concerning the Company and its businesses, properties or assets to a Potential Acquiror, (ii) the Company may engage in discussions or negotiations with the provisions -------- ------- a Potential Acquiror, (iii) following receipt of Section 7.1(b)a proposal or offer for an Acquisition Transaction, the Company may make disclosure to the Company's stockholders and may recommend such proposal or offer to the Company's stockholders and (iv) following receipt of a proposal or offer for an Acquisition Transaction, the Board of Directors may furnish information to, or enter into discussions an agreement in principle or negotiations witha definitive agreement with respect to such Acquisition Transaction, any person that makes an unsolicited written Acquisition Proposal if, and but in each case referred to in the foregoing clauses (i) through (iv) only to the extent that (A) the Board of Directors of the Company Board, shall have first concluded in good faith after consultation with its outside legal counsel, determines in good faith counsel that such action is necessary for or appropriate because failure to take such action would constitute a breach of the fiduciary duties owed by the Board of Directors of the Company Board to comply with its fiduciary duties to the Company's stockholders under applicable law; and provided, (B) such Acquisition Proposal is not subject to any financing contingencies or isfurther, in that the good faith judgment Board of Directors of the Company Board after consultation with a nationally recognized financial advisor, reasonably capable of being financed, and is at least as likely to be consummated as is the Merger, (C) shall not take or permit the Company Board determines in good faith that such Acquisition Proposal, based upon such matters as it deems relevant (including consultation with a nationally recognized financial advisor) would, if consummated, result in a transaction more favorable to take any of the Company's stockholders from a financial point of view than the Merger (any such more favorable Acquisition Proposal being foregoing actions referred to herein as a "Superior Proposal"), in clauses (Di) the Company receives from such ----------------- person an executed confidentiality agreement in reasonably customary form and through (Eiv) at least three (3) business days without prior to taking such action, the Company shall provide written notice to Parent Siemens with respect to such action. The Company shall promptly inform Siemens, orally and in writing, of the material terms and conditions of any proposal or offer for, or which may reasonably be expected to lead to, an Acquisition Transaction that it receives and the identity of the Potential Acquiror. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted on or prior to the effect that it is taking such actiondate of this Agreement heretofore with respect to any Acquisition Transaction. As used in this Agreement, "Acquisition Transaction" means any merger, consolidation or other business combination involving the Company, or any acquisition in any manner of all or a substantial portion of the equity of, or all or a substantial portion of the assets of, the Company, whether for cash, securities or any other consideration or combination thereof, other than pursuant to the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Entex Information Services Inc)
No Solicitations. (a) The Company represents and warrants that it has terminatedFrom May 12, and has caused its subsidiaries and affiliates1998 until the Effective Date or, and their respective officersif earlier, directors, employees, investment bankers, attorneys, accountants and other advisors or representatives to terminate, any activities, discussions or negotiations relating to, or that may be reasonably be expected to lead to, any Acquisition Proposal (as hereinafter defined) and will promptly request the return of all confidential information regarding the Company provided to any third party prior to the date of this Agreement pursuant to the terms of any confidentiality agreements. From the date hereof until the termination hereof and except is terminated or abandoned as permitted by the following provisions of this provided in Section 7.110.1, the Company shall not, and Parent shall not authorize or permit any of its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other advisor or Representative retained by it to, (nor did it) directly or indirectly, indirectly (i) solicit, solicit or initiate or encourage (including by way of furnishing non-public information), or take any other action to facilitate, any inquiries or the making of any proposal that constitutes an Acquisition Proposal or any inquiries or making of any proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, discussion with or (ii) participate in enter into negotiations or agreements with, or furnish any activitiesinformation that is not publicly available to, discussions any corporation, partnership, person or negotiations regarding other entity or group (other than the Company, an Affiliate of the Company or their authorized representatives) concerning any Acquisition ProposalProposal involving Parent, and Parent will instruct its Representatives not to take any action contrary to the foregoing provisions of this sentence; provided, however, that subject to compliance by the Company with the provisions -------- ------- of Section 7.1(b), the Company Board may furnish information to, or enter into discussions or negotiations with, Parent and its Representatives shall not be prohibited from taking any person that makes an unsolicited written Acquisition Proposal if, and only action described in clause (ii) above to the extent that (A) the Company Board, after consultation with its outside legal counsel, determines in good faith that such action is necessary for taken by, or upon the Company authority of, the Board of Directors of Parent in the exercise of the Board's good faith judgment as to comply with its fiduciary duties to the shareholders of the Company's stockholders under applicable law, (B) which judgment is based upon the written advice of independent, outside legal counsel that a failure of the Board of Directors of Parent to take such action would be likely to constitute a breach of its fiduciary duties to such shareholders. Parent will notify the Company promptly in writing if Parent 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, Parent with respect to an Acquisition Proposal is not subject to any financing contingencies or isProposal. Each time, if any, that the Board of Directors of Parent 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, partnership, person or other entity or group (other than Parent, an Affiliate of the Company Board after consultation with a nationally recognized financial advisor, reasonably capable of being financed, and is at least as likely to be consummated as is the Merger, (Cor their Representatives) the Company Board determines in good faith that such concerning any Acquisition Proposal, based upon such matters as it deems relevant (including consultation with a nationally recognized financial advisor) would, if consummated, result in a transaction more favorable to the Company's stockholders from a financial point of view than the Merger (any such more favorable Acquisition Proposal being referred to herein as a "Superior Proposal"), (D) Parent will give the Company receives from prompt notice of such ----------------- person an executed confidentiality agreement in reasonably customary form and determination (E) at least three (3) business days prior to taking which shall include a copy of the written advice of such action, the Company shall provide written notice to Parent to the effect that it is taking such actionlegal counsel).
Appears in 1 contract
Samples: Agreement of Merger (Metro Tel 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) The Company represents and warrants that it has terminateddirectly 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 a merger, sale of substantial assets, sale of shares of stock or securities or other takeover or business combination transaction (the "Acquisition Proposal") involving the Company, and has caused its subsidiaries the Company and affiliates, and the Agreement Shareholders will instruct their respective officers, directors, employeesadvisors and financial and legal representatives and consultants (collectively, investment bankers, attorneys, accountants and other advisors or representatives the "Representatives") not to terminate, take any activities, discussions or negotiations relating to, or that may be reasonably be expected to lead to, any Acquisition Proposal (as hereinafter defined) and will promptly request the return of all confidential information regarding the Company provided to any third party prior action contrary to the date of this Agreement pursuant to the terms of any confidentiality agreements. From the date hereof until the termination hereof and except as permitted by the following foregoing provisions of this Section 7.1, the Company shall not, and shall not authorize or permit any of its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other advisor or Representative retained by it to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing non-public information), or take any other action to facilitate, any inquiries or the making of any proposal that constitutes an Acquisition Proposal or any inquiries or making of any proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, or (ii) participate in any activities, discussions or negotiations regarding an Acquisition Proposalsentence; provided, however, that subject to compliance by the Company with the provisions -------- ------- of Section 7.1(b), the Company Board may furnish information to, or enter into discussions or negotiations with, and its Representatives shall not be prohibited from taking any person that makes an unsolicited written Acquisition Proposal if, and only action described in clause (ii) above to the extent that (A) the Company Board, after consultation with its outside legal counsel, determines in good faith that such action is necessary for taken by, or upon the authority of, the Board of Directors of the Company Board in the exercise of the Board's good faith judgment as to comply with its fiduciary duties to the shareholders of the Company's stockholders under applicable law, (B) which judgment is based upon the written advice of independent, outside legal counsel that a failure of the Board of Directors of the Company to take such action would be likely to constitute a breach of its fiduciary duties to such shareholders. The Company will notify Parent promptly in writing if the Company 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, the Company with respect to an Acquisition Proposal is not subject to any financing contingencies or isProposal. Each time, if any, that the 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 the Company Board after consultation with a nationally recognized financial advisor, reasonably capable of being financed, and is at least as likely to be consummated as is the Merger, (CParent or their representatives) the Company Board determines in good faith that such concerning any Acquisition Proposal, based upon such matters as it deems relevant (including consultation with a nationally recognized financial advisor) would, if consummated, result in a transaction more favorable to the Company's stockholders from a financial point of view than the Merger (any such more favorable Acquisition Proposal being referred to herein as a "Superior Proposal"), (D) the Company receives from will give Parent prompt notice of such ----------------- person an executed confidentiality agreement in reasonably customary form and determination (E) at least three (3) business days prior to taking which shall include a copy of the written advice of such action, the Company shall provide written notice to Parent to the effect that it is taking such actionlegal counsel).
Appears in 1 contract
Samples: Agreement of Merger (Metro Tel Corp)
No Solicitations. (a) The Company represents and warrants that it has terminated, and has caused its subsidiaries and affiliates, and their respective officers, directors, employees, investment bankers, attorneys, accountants and other advisors or representatives to terminate, any activities, discussions or negotiations relating to, or that may be reasonably be expected to lead to, any Acquisition Proposal (as hereinafter defined) and will promptly request the return of all confidential information regarding the Company provided to any third party prior to the date of this Agreement pursuant to the terms of any confidentiality agreements. From the date hereof until the termination hereof and except as permitted by the following provisions of this Section 7.1, the Company shall not, and shall not authorize or permit any of its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other advisor or Representative retained by it to, directly or indirectly, (i) solicitthrough any officer, initiate director, employee, representative, agent or other person, solicit or encourage the initiation or submission of any direct or indirect inquiries, proposals or offers regarding any acquisition, merger, takeover bid or sale of all or any of the assets (including other than in the ordinary course of business consistent with past practice) or any shares of capital stock of the Company (other than pursuant to exercise, in accordance with the terms thereof, by the persons listed on Schedule 2.2(a) of options outstanding under Company Stock Option Plans as in effect on the date hereof), whether or not in writing and whether or not delivered to the stockholders of the Company generally (including, without limitation, by way of furnishing non-public information), a tender offer) by any party other than Emerald or take its affiliates (any other action to facilitate, any of the foregoing inquiries or the making of any proposal that constitutes proposals being referred to herein as an Acquisition Proposal or any inquiries or making of any proposal that constitutes, or may reasonably be expected to lead to, an "Acquisition Proposal, or (ii) participate in any activities, discussions or negotiations regarding an Acquisition Proposal"); provided, however, that subject to compliance by nothing contained in this Agreement shall prevent the Board of Directors of the Company with from referring any third party to this Section 5.4. Nothing contained in this Section 5.4 or any other provision of this Agreement shall prevent the provisions -------- ------- Board of Section 7.1(b), Directors of the Company Board may furnish information to, from considering or enter into discussions or negotiations with, any person that makes negotiating an unsolicited bona fide Acquisition Proposal. If the Board of Directors of the Company, after duly considering written Acquisition Proposal if, advice of outside counsel and only financial advisors to the extent that (A) the Company Board, after consultation with its outside legal counselCompany, determines in good faith that it would likely be a violation of its fiduciary responsibilities to not approve or recommend (and in connection therewith withdraw or modify its approval or recommendation of this Agreement, and the transactions contemplated hereby) a Superior Proposal (as defined below), then, notwithstanding any such action approval or recommendation (i) the Company shall not enter into any agreement with respect to the Superior Proposal and (ii) any other obligation of the Company under this Agreement shall not be affected, unless this Agreement is necessary for terminated pursuant to Section 8.1(e) hereof prior to or simultaneously with the grant of such approval or the making of such recommendation and the Company, at the time of such termination resulting from such Superior Proposal, pays Emerald the Termination Fee. As used herein the term "Superior Proposal" means an unsolicited bona fide proposal made by a third party to acquire the Company pursuant to a tender or exchange offer, a merger, a sale of all or any significant portion of its assets or otherwise that the Company Board to comply with of Directors determines in its fiduciary duties to the Company's stockholders under applicable law, (B) such Acquisition Proposal is not subject to any financing contingencies or is, in the good faith judgment of the Company Board after consultation with to be a nationally recognized financial advisorproposal which, if accepted, (x) is reasonably capable of being financed, and is at least as likely to be consummated as is the Mergerconsummated, taking into account, without limitation, all legal, financial and regulatory aspects of such proposal and person or persons making such proposal and (C) the Company Board determines in good faith that such Acquisition Proposal, based upon such matters as it deems relevant (including consultation with a nationally recognized financial advisory) would, if consummated, result in a transaction more favorable transaction to the holders of the Company Common Stock than the transactions contemplated by this Agreement (after considering the written advice of the Company's stockholders from a financial point of view than the Merger (any such more favorable Acquisition Proposal being referred to herein as a "Superior Proposal"professional advisors), (D) the Company receives from such ----------------- person an executed confidentiality agreement in reasonably customary form and (E) at least three (3) business days prior to taking such action, the Company shall provide written notice to Parent to the effect that it is taking such action.
Appears in 1 contract
No Solicitations. (a) The Company represents From and warrants that it has terminated, and has caused its subsidiaries and affiliates, and their respective officers, directors, employees, investment bankers, attorneys, accountants and other advisors or representatives to terminate, any activities, discussions or negotiations relating to, or that may be reasonably be expected to lead to, any Acquisition Proposal (as hereinafter defined) and will promptly request the return of all confidential information regarding the Company provided to any third party prior to after the date of this Agreement pursuant to the terms of any confidentiality agreements. From the date hereof until the termination hereof hereof, USR and except as permitted by the following provisions of this Section 7.1, the Company URI shall not, and shall not authorize or permit any of its officers, directors their respective subsidiaries or employees or any investment banker, financial advisor, attorney, accountant or other advisor or Representative retained by it Representatives to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing non-public information), ) or take any other action to facilitate, facilitate knowingly any inquiries or the making of any proposal that which constitutes an Acquisition Proposal or any inquiries or making of any proposal that constitutes, or may reasonably be expected to lead to, to an Acquisition ProposalProposal (as defined herein) from any person or entity, or (ii) participate engage in any activities, discussions discussion or negotiations regarding an relating thereto or accept any Acquisition Proposal; provided, however, that subject notwithstanding any other provision hereof, either party may (i) comply with Rule 14e-2 promulgated under the Exchange Act with regard to compliance by a tender or exchange offer; and (ii) at any time after the Company with 120th day following the provisions -------- ------- of Section 7.1(b)date hereof and prior to the time USR stockholders shall have voted to adopt this Agreement, the Company Board may furnish information to, or enter into (A) engage in discussions or negotiations withwith a third party who (without any solicitation, any person that makes an unsolicited written Acquisition Proposal initiation, encouragement, discussion or negotiation, directly or indirectly, by or with the party or its Representatives after the date hereof) seeks to initiate such discussions or negotiations, and may furnish such third party information concerning the party and its business, properties and assets if, and only to the extent that that, (A1)(w) the Company Board, third party has first made an Acquisition Proposal that the Board of Directors of such party believes in good faith (after consultation with its outside legal counsel, determines in good faith that such action is necessary for the Company Board to comply with its fiduciary duties to the Company's stockholders under applicable law, (B) such Acquisition Proposal is not subject to any financing contingencies or is, in the good faith judgment of the Company Board after consultation with a nationally recognized financial advisor, ) is reasonably capable of being financedcompleted, taking into account all relevant legal, financial, regulatory and is at least as likely to be consummated as is other aspects of the MergerAcquisition Proposal and the source of its financing, (C) on the Company Board determines terms proposed and, believes in good faith that such Acquisition Proposal, based upon such matters as it deems relevant (including after consultation with its financial advisor and after taking into account the strategic benefits anticipated to be derived from the Merger and the long-term prospects of USR and URI as a nationally recognized financial advisor) combined company), would, if consummated, result in a transaction more favorable to the Company's stockholders of USR or URI, as the case may be, from a financial point of view view, than the Merger transactions contemplated by this Agreement and believes in good faith (after consultation with its financial advisor) that the person making such Acquisition Proposal has, or is reasonably likely to have or obtain, any necessary funds or customary commitments to provide any funds necessary to consummate such Acquisition Proposal (any such more favorable Acquisition Proposal being referred to herein as a "Superior Proposal"), (D) the Company receives from such ----------------- person an executed confidentiality agreement in reasonably customary form and (E) at least three (3) business days prior to taking such action, the Company shall provide written notice to Parent to the effect that it is taking such action.in
Appears in 1 contract
No Solicitations. (a) The Company represents and warrants that it has terminated, and has caused its subsidiaries and affiliates, and their respective officers, directors, employees, investment bankers, attorneys, accountants and other advisors or representatives to terminate, any activities, discussions or negotiations relating to, or that may be reasonably be expected to lead to, any Acquisition Proposal (as hereinafter defined) and will promptly request the return of all confidential information regarding the Company provided to any third party prior to the date of this Agreement pursuant to the terms of any confidentiality agreements. From the date hereof until the termination hereof and except as permitted by the following provisions of this Section 7.1, the Company shall not, and shall will not authorize or permit any of its Subsidiaries or any of the directors, officers, directors employees, advisors, representatives or employees agents of the Company or any investment bankerof its Subsidiaries (collectively, financial advisor, attorney, accountant or other advisor or Representative retained by it the "Representatives") to, directly or indirectly, (i) solicitdiscuss, initiate negotiate, undertake, authorize, recommend, propose or encourage enter into, either as the proposed surviving, merged, acquiring or acquired corporation, any transaction involving a merger, consolidation, business combination, purchase or disposition of any amount of the assets of the Company (including other than the sale of inventory in the ordinary course of business) or any of its Subsidiaries or any capital stock of the Company or any of its Subsidiaries other than the transactions contemplated by way of furnishing non-public informationthis Agreement (an "Acquisition Transaction"), or take any other action to (ii) facilitate, any inquiries encourage, solicit or the making initiate discussions, negotiations or submissions of any proposal that constitutes proposals or offers in respect of an Acquisition Proposal Transaction, (iii) furnish or cause to be furnished, to any inquiries person or making entity, any information concerning the business, operations, properties or assets of any proposal that constitutes, the Company or may reasonably be expected to lead to, its Subsidiaries in connection with an Acquisition ProposalTransaction, or (iiiv) participate otherwise cooperate in any activitiesway with, discussions or negotiations regarding an Acquisition Proposal; assist or participate in, facilitate or encourage, any effort or attempt by any other person or entity to do or seek any of the foregoing, provided, however, that subject that, at any time prior to compliance the approval of this Agreement by the stockholders of the Company, if the Company with the provisions -------- ------- receives a bona fide written Acquisition Transaction that was unsolicited and that did not otherwise result from a breach of this Section 7.1(b)7.6, the Company Board may furnish non-public information to, or enter into discussions or negotiations with, any person that makes an unsolicited written Acquisition Proposal if, and only with respect to the extent that Company and its Subsidiaries to the person who made such Acquisition Transaction and may participate in discussions regarding such Acquisition Transaction if (A) the Company Board, after consultation with its outside legal counsel, Board determines in good faith faith, after receiving advice from its outside counsel, that such action is necessary for the Company Board failure to comply with do so would violate its fiduciary duties to the Company's stockholders under applicable law, and (B) such Acquisition Proposal is not subject to any financing contingencies or is, in the good faith judgment of the Company Board after consultation with a nationally recognized financial advisor, reasonably capable of being financed, and is at least as likely to be consummated as is the Merger, (C) the Company Board determines in good faith that such Acquisition Proposal, based upon such matters Transaction is a Superior Proposal (as it deems relevant (including consultation with a nationally recognized financial advisor) would, if consummated, result defined in a transaction more favorable to the Company's stockholders from a financial point of view than the Merger (any such more favorable Acquisition Proposal being referred to herein as a "Superior Proposal"Section 7.6(c), (D) the Company receives from such ----------------- person an executed confidentiality agreement in reasonably customary form and (E) at least three (3) business days prior to taking such action, the Company shall provide written notice to Parent to the effect that it is taking such action).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Laboratory Corp of America Holdings)
No Solicitations. Until such date, if any, as this Agreement is terminated pursuant to Article XIV (a) The Company represents the “Termination Date”), Seller or Shareholders will not and warrants that it has terminated, will not permit and has caused its subsidiaries and affiliates, and will instruct their respective officersAffiliates, directors, officers, employees, investment bankersconsultants, attorneyscontractors, accountants and other representatives, agents or advisors or representatives of Seller to terminate, any activities, discussions or negotiations relating to, or that may be reasonably be expected to lead to, any Acquisition Proposal (as hereinafter defined) and will promptly request the return of all confidential information regarding the Company provided to any third party prior to the date of this Agreement pursuant to the terms of any confidentiality agreements. From the date hereof until the termination hereof and except as permitted by the following provisions of this Section 7.1, the Company shall not, and shall not authorize without the prior written consent of Buyer: directly or permit indirectly or any Person retained by any of its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other advisor or Representative retained by it to, directly or indirectly, (ithe foregoing) solicit, initiate solicit or encourage (including by way of furnishing non-public information), or take any other action to facilitate, any inquiries or the making of any proposal that constitutes an Acquisition Proposal or any inquiries or making of any proposal that which constitutes, or may reasonably be expected to lead to, an Acquisition Proposalany proposal to (a) buy, or otherwise dispose of, any portion of the Assets or (iib) participate regarding any acquisition of Seller, including without limitation any acquisition of any material portion of the assets of Seller (each, a “Third Party Acquisition”). Seller and Shareholders agree that any such actions (other than negotiations with Buyer) in any activitiesprogress as of the date of this Agreement will be suspended through the Termination Date and that, discussions in no event, will Seller or negotiations regarding an Acquisition Proposal; providedShareholders accept, however, that subject agree to compliance by the Company with the provisions -------- ------- of Section 7.1(b), the Company Board may furnish information to, enter or otherwise enter into discussions any agreement concerning any such Third Party Acquisition transaction from the date hereof through the Termination Date. Seller or negotiations withShareholders will notify Buyer in writing immediately after receipt by Seller or Shareholder (or any of their respective Affiliates, directors, officers, employees, consultants, contractors, representatives, agents or advisors) of any person that makes an unsolicited written Acquisition Proposal if, and only offers or inquiries regarding a Third Party Acquisition. Such notice to Buyer will indicate in reasonable detail the extent that (A) the Company Board, after consultation with its outside legal counsel, determines in good faith that such action is necessary for the Company Board to comply with its fiduciary duties to the Company's stockholders under applicable law, (B) such Acquisition Proposal is not subject to any financing contingencies or is, in the good faith judgment identity of the Company Board after consultation with Person seeking a nationally recognized financial advisor, reasonably capable of being financed, Third Party Acquisition and is at least as likely to be consummated as is the Merger, (C) the Company Board determines in good faith that such Acquisition Proposal, based upon such matters as it deems relevant (including consultation with a nationally recognized financial advisor) would, if consummated, result in a transaction more favorable to the Company's stockholders from a financial point of view than the Merger (any such more favorable Acquisition Proposal being referred to herein as a "Superior Proposal"), (D) the Company receives from such ----------------- person an executed confidentiality agreement in reasonably customary form terms and (E) at least three (3) business days prior to taking such action, the Company shall provide written notice to Parent to the effect that it is taking such actionconditions thereof.
Appears in 1 contract
No Solicitations. (a) The Company represents From and warrants that it has terminated, and has caused its subsidiaries and affiliates, and their respective officers, directors, employees, investment bankers, attorneys, accountants and other advisors or representatives to terminate, any activities, discussions or negotiations relating to, or that may be reasonably be expected to lead to, any Acquisition Proposal (as hereinafter defined) and will promptly request the return of all confidential information regarding the Company provided to any third party prior to after the date of this Agreement pursuant to the terms of any confidentiality agreements. From the date hereof until the termination hereof hereof, KCPL and except as permitted by the following provisions of this Section 7.1, the Company shall UCU will not, and shall will not authorize or permit any of its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other advisor or Representative retained by it their respective Representatives to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing non-public information), ) or take any other action to facilitate, facilitate knowingly any inquiries or the making of any proposal that which constitutes an Acquisition Proposal or any inquiries or making of any proposal that constitutes, or may reasonably be expected to lead to, to an Acquisition ProposalProposal (as defined herein) from any person, or (ii) participate engage in any activitiesdiscussion or negotiations relating thereto or accept any Acquisition Proposal; PROVIDED, HOWEVER, that notwithstanding any other provision hereof, the respective party may (i) at any time prior to the time the respective party's stockholders shall have voted to approve this Agreement engage in discussions or negotiations regarding an Acquisition Proposal; providedwith a third party who (without any solicitation, howeverinitiation, that subject to compliance encouragement, discussion or negotiation, directly or indirectly, by the Company or with the provisions -------- ------- of Section 7.1(b), party or its Representatives after the Company Board may furnish information to, or enter into date hereof) seeks to initiate such discussions or negotiations withand may furnish such third party information concerning the party and its business, any person that makes an unsolicited written Acquisition Proposal properties and assets if, and only to the extent that that, (A) (x) the Company Board, third party has first made an Acquisition Proposal that is financially superior to the Merger and has demonstrated that financing for the Acquisition Proposal is reasonably likely to be obtained (as determined in good faith in each case by the party's Board of Directors after consultation with its outside legal counsel, determines financial advisors) and (y) the party's Board of Directors shall conclude in good faith faith, after considering applicable provisions of state law, on the basis of oral or written advice of outside counsel that such action is necessary for the Company Board of Directors to comply act in a manner consistent with its fiduciary duties to the Company's stockholders under applicable law, law and (B) prior to furnishing such Acquisition Proposal is not subject information to any financing contingencies or isentering into discussions or negotiations with such person or entity, in the good faith judgment of the Company Board after consultation with a nationally recognized financial advisor, reasonably capable of being financed, and is at least as likely to be consummated as is the Merger, such party (Cx) the Company Board determines in good faith that such Acquisition Proposal, based upon such matters as it deems relevant (including consultation with a nationally recognized financial advisor) would, if consummated, result in a transaction more favorable provides prompt notice to the Company's stockholders from a financial point of view than the Merger (any such more favorable Acquisition Proposal being referred to herein as a "Superior Proposal"), (D) the Company receives from such ----------------- person an executed confidentiality agreement in reasonably customary form and (E) at least three (3) business days prior to taking such action, the Company shall provide written notice to Parent to the effect that it is taking such action.other 44
Appears in 1 contract
Samples: Agreement and Plan of Merger (Kansas City Power & Light Co)
No Solicitations. (a) The Company represents agrees that neither it nor any of the Company Subsidiaries, nor any of their respective officers or directors shall, and warrants that it has terminated, shall direct and has caused use its subsidiaries best efforts to cause its and affiliates, and their respective officers, directors, the Company Subsidiaries' employees, investment bankers, attorneys, accountants agents and other advisors or representatives to terminate, any activities, discussions or negotiations relating to, or that may be reasonably be expected to lead to, any Acquisition Proposal (as hereinafter defined) and will promptly request the return of all confidential information regarding the Company provided to any third party prior to the date of this Agreement pursuant to the terms of any confidentiality agreements. From the date hereof until the termination hereof and except as permitted by the following provisions of this Section 7.1, the Company shall not, and shall not authorize or permit any of its officers, directors or employees or including any investment banker, financial advisor, attorney, accountant attorney or other advisor or Representative retained by it accountant) not to, directly or indirectly, (i) solicit, initiate initiate, encourage or encourage otherwise facilitate any inquiries or the submission of any Acquisition Proposal (including by way of furnishing non-public information)as defined herein) or (ii) participate in any discussions or negotiations regarding, or furnish to any Person any information with respect to, or take any other action to facilitate, facilitate any inquiries or the making of any proposal that constitutes an Acquisition Proposal or any inquiries or making of any proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, or (ii) participate in any activities, discussions or negotiations regarding an Acquisition Proposal; provided, however, that subject to compliance by nothing contained in this Section 5.3 shall prohibit the Board of Directors of the Company with the provisions -------- ------- of Section 7.1(b), the Company Board may furnish (and its authorized representatives) from: (x) furnishing information to, or enter entering into discussions or negotiations with, any person Person that makes an unsolicited bona fide written Acquisition Proposal from and after the date of this Agreement which did not result from a breach of this Section 5.3 if, and only to the extent that (A) the Board of Directors of the Company Board, after consultation with its and taking into account the advice of outside legal counsel, determines in good faith that such action is necessary in order for the Board of Directors of the Company Board to comply with its fiduciary duties to the Company's stockholders under applicable lawLaw it is necessary to take such action, (B) prior to taking such Acquisition Proposal is not subject to any financing contingencies or isaction, in the good faith judgment of the Company Board after consultation with a nationally recognized financial advisor, reasonably capable of being financed, receives from such Person an executed confidentiality agreement having substantially the same terms as the Confidentiality Agreement and is at least as likely to be consummated as is the Merger, (C) the Company Board determines in good faith (after consultation with and taking into account the advice of its financial advisor and after receipt of, and taking into account the advice of, outside counsel) that such Acquisition Proposal, based upon such matters as it deems relevant (including consultation with a nationally recognized if accepted, is reasonably likely to be consummated, taking into account all legal, financial advisor) and regulatory aspects of the proposal and the Person making the proposal, and the proposal would, if consummated, result in a transaction more favorable to the Company's stockholders from a financial point of view transaction than the Merger transactions contemplated by this Agreement, taking into account the long term prospects and interests of the Company and its stockholders (any such more favorable Acquisition Proposal being hereinafter referred to herein as a "Superior Proposal"); or (y) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. The Company agrees that it will take the necessary steps to promptly inform the individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 5.3 and in the Confidentiality Agreement (D) as defined in Section 5.1). The Company agrees that it will notify Parent immediately if any such inquiries, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with any of its representatives indicating, in connection with such notice, the name of such Person and the material terms and conditions of any proposals or offers and thereafter shall keep Parent informed, on a current basis, on the status and terms of any such proposals or offers and the status of any such discussions or negotiations. The Company receives from such ----------------- person an also agrees that it will promptly request each Person that has heretofore executed a confidentiality agreement in reasonably customary form and (E) at least three (3) connection with its consideration of acquiring it or any of its Subsidiaries to return all written confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any Person relating to any direct or indirect acquisition or purchase of a business days prior to taking such actionthat constitutes 15% or more of the net revenues, net income or the assets of the Company or any of its significant Subsidiaries (as defined in Rule 1-02(w) of Regulation S-X promulgated under the Exchange Act) (a "Significant Subsidiary"), or 15% or more of any class of equity securities of the Company or any of its Significant Subsidiaries, any tender offer or exchange offer that if consummated would result in any Person beneficially owning 15% or more of any class of equity securities of the Company or any of its Significant Subsidiaries, any reinsurance transaction entered into outside the ordinary course of business involving more than 15% of any Significant Subsidiary's assets or policyholder liabilities, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any of its Significant Subsidiaries; provided that (w) the transactions contemplated by this Agreement, (x) any activities of Employees' Reinsurance Corporation taken with respect to its existing interest in the Company in accordance with the terms of existing arrangements, (y) any discussions conducted by or on behalf of the Company and Employees' Reinsurance Corporation with a view to satisfying the condition contained in Section 6.3(l), or (z) any activities in connection with the proposed disposition of Integrated Process Technologies LLC, shall provide written notice not be deemed to Parent to the effect that it is taking such actionbe an Acquisition Proposal.
Appears in 1 contract
No Solicitations. (a) The Company represents From and warrants that it has terminated, and has caused its subsidiaries and affiliates, and their respective officers, directors, employees, investment bankers, attorneys, accountants and other advisors or representatives to terminate, any activities, discussions or negotiations relating to, or that may be reasonably be expected to lead to, any Acquisition Proposal (as hereinafter defined) and will promptly request the return of all confidential information regarding the Company provided to any third party prior to after the date of this Agreement pursuant to the terms of any confidentiality agreements. From the date hereof until the termination hereof and except as permitted by the following provisions of this Section 7.1hereof, the Company shall KCPL will not, and shall will not authorize or permit any of its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other advisor or Representative retained by it Representatives to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing non-public information), ) or take any other action to facilitate, facilitate knowingly any inquiries or the making of any proposal that which constitutes an Acquisition Proposal or any inquiries or making of any proposal that constitutes, or may reasonably be expected to lead to, to an Acquisition ProposalProposal (as defined herein) from any person, or (ii) participate engage in any activities, discussions discussion or negotiations regarding an relating thereto or accept any Acquisition Proposal; provided, however, that subject notwithstanding any other provision hereof, KCPL may (i) at any time prior to compliance by the Company with the provisions -------- ------- of Section 7.1(b)time KCPL's shareholders shall have voted to approve this Agreement, the Company Board may furnish information to, or enter into engage in discussions or negotiations withwith a third party who (without any solicitation, any person that makes an unsolicited written Acquisition Proposal initiation, encouragement, discussion or negotiation, directly or indirectly, by or with KCPL or its Representatives after the date hereof) seeks to initiate such discussions or negotiations and may furnish such third party information concerning KCPL and its business, properties and assets if, and only to the extent that that, (A) (x) the Company Board, third party has first made an Acquisition Proposal that is financially superior to the transactions contemplated herein and has demonstrated that financing for the Acquisition Proposal is reasonably likely to be obtained (as determined in good faith by KCPL's Board of Directors after consultation with its outside legal counsel, determines financial advisors) and (y) KCPL's Board of Directors shall conclude in good faith faith, after considering applicable provisions of state law, on the basis of oral or written advice of outside counsel that such action is necessary for the Company KCPL Board of Directors to comply act in a manner consistent with its fiduciary duties to the Company's stockholders under applicable law, law and (B) prior to furnishing such Acquisition Proposal is not subject information to any financing contingencies or isentering into discussions or negotiations with such person or entity, in the good faith judgment of the Company Board after consultation with a nationally recognized financial advisor, reasonably capable of being financed, and is at least as likely KCPL (x) provides prompt notice to be consummated as is the Merger, (C) the Company Board determines in good faith that such Acquisition Proposal, based upon such matters as it deems relevant (including consultation with a nationally recognized financial advisor) would, if consummated, result in a transaction more favorable Western Resources to the Company's stockholders from a financial point of view than the Merger effect that it is planning to furnish information to or enter into discussions or negotiations with such person or entity and (any such more favorable Acquisition Proposal being referred to herein as a "Superior Proposal"), (Dy) the Company receives from such ----------------- person or entity an executed confidentiality agreement in reasonably customary form on terms not in the aggregate materially more favorable to such person or entity than the terms contained in the Confidentiality Agreement, (ii) comply with Rule 14e-2 promulgated under the Exchange Act with regard to a tender or exchange offer, and/or (iii) accept an Acquisition Proposal from a third party, provided KCPL first terminates this Agreement pursuant to Section 11.1(e). KCPL shall immediately cease and terminate any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any parties conducted heretofore by KCPL or its Representatives with respect to the foregoing. KCPL shall notify Western Resources orally and in writing of any such inquiries, offers or proposals (E) at least three (3) business days prior to taking such actionincluding, without limitation, the Company terms and conditions of any such proposal and the identity of the person making it), within 24 hours of the receipt thereof, shall provide written keep Western Resources informed of the status and details of any such inquiry, offer or proposal, and shall give Western Resources five days' advance notice of any agreement to Parent be entered into with or any information to be supplied to any person making such inquiry, offer or proposal. As used herein, "Acquisition Proposal" shall mean a proposal or offer (other than by Western Resources, KGE or New KC) for a tender or exchange offer, merger, consolidation or other business combination involving KCPL or any KCPL Subsidiary or any proposal to acquire in any manner a substantial equity interest in or a substantial portion of the effect that it is taking such actionassets of KCPL or any KCPL Subsidiary.
Appears in 1 contract
Samples: And Restated Agreement and Plan of Merger (Kansas Gas & Electric Co /Ks/)
No Solicitations. The Company shall not and shall cause its Subsidiaries not to, directly or indirectly, through any officer, director, affiliate, employee, agent, financial advisor, representative or otherwise, (a) The Company represents and warrants that it has terminatedsolicit or initiate any inquiries with respect to the submission of any Acquisition Proposal (as defined below), and has caused its subsidiaries and affiliates, and their respective officers, directors, employees, investment bankers, attorneys, accountants and other advisors or representatives to terminate, (b) participate in any activities, discussions or negotiations relating regarding, or furnish to any Person any information with respect to, or otherwise cooperate in any way with, or knowingly assist or participate in, facilitate or encourage, any effort or attempt by any Person to make an inquiry in respect of or make any proposal or offer that constitutes, or may be reasonably be expected to lead to, any Acquisition Proposal (as hereinafter defined) and will promptly request the return of all confidential information regarding the Company provided to any third party prior to the date of this Agreement pursuant to the terms of any confidentiality agreements. From the date hereof until the termination hereof and except as permitted by the following provisions of this Section 7.1, the Company shall not, and shall not authorize or permit any of its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other advisor or Representative retained by it to, directly or indirectly, (i) solicit, initiate or encourage (including by way of furnishing non-public information), or take any other action to facilitate, any inquiries or the making of any proposal that constitutes an Acquisition Proposal or any inquiries or making of any proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, or (iic) participate enter into any agreement or agreement in any activities, discussions principle providing for or negotiations regarding relating to an Acquisition Proposal; provided, however, that subject (i) nothing contained in this Section 4.2 or any other provision of this Agreement shall prohibit the Company or the Board of Directors from taking and disclosing to compliance the Company shareholders pursuant to Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act, a position with respect to a tender or exchange offer by a third party and (ii) the Company may, prior to the approval by the Company with shareholders of the provisions -------- ------- Merger, in response to an unsolicited bona fide written proposal received on or after the date of Section 7.1(bthis Agreement (and not withdrawn), the Company Board may with respect to an Acquisition Proposal from a third party, which did not result from a breach of this Section 4.2, furnish information to, and negotiate, explore or enter into otherwise engage in substantive discussions or negotiations with, any person that makes an unsolicited written Acquisition Proposal with such third party only if, and only to the extent that (A) the Company BoardBoard of Directors, after consultation with and taking into account the advice of its financial advisors and outside legal counsel, determines in good faith that such action is necessary for the Company Board to comply with of Directors would breach its fiduciary duties to the Company's stockholders shareholders under applicable lawlaw without taking such action, (B) prior to taking such Acquisition Proposal is not subject to any financing contingencies or isaction, in the good faith judgment of the Company Board after consultation with a nationally recognized financial advisor, reasonably capable of being financed, and is at least as likely to be consummated as is receives from such Person an executed confidentiality agreement having terms no more favorable than the MergerConfidentiality Agreement, (C) the Company Board of Directors, after consultation with and taking into account the advice of its financial advisors and legal counsel, determines in good faith that such Acquisition Proposalproposal would, based upon such matters as it deems relevant if accepted, be reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the proposal and the Person making the proposal, and (including consultation with a nationally recognized financial advisorD) the proposal would, if consummated, result in a transaction more favorable that provides a higher per share price to the Company's stockholders its shareholders, from a financial point of view view, than the Merger transactions contemplated by this Agreement and for which financing, to the extent required, is then represented by bona fide commitment letters (any such more favorable Acquisition Proposal being hereinafter referred to herein as a "“Superior Proposal"”; provided, that, for purposes of the definition of Superior Proposal, the term Acquisition Proposal shall have the meaning assigned below, except that references to “15% or more” shall be deemed to be references to “50% or more”). The Company shall and shall cause its Subsidiaries and their respective officers, (D) directors, affiliates, employees, agents, financial advisors and representatives to immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any Person conducted heretofore with respect to any of the foregoing. The Company shall and shall cause its Subsidiaries to immediately notify Holdings and Merger Sub if any proposals are received by, any information is requested from, or any negotiations or discussions are sought to be initiated or continued with the Company receives from or any of its Subsidiaries, in each case in connection with any Acquisition Proposal. Each notice shall contain the name of any Person making any such ----------------- person proposal, requesting such information or seeking such negotiations or discussions and a summary of the material terms and conditions of any proposals or offers and thereafter the Company shall keep Holdings and Merger Sub informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiations. The Company agrees that it will take the necessary steps to promptly inform the Persons referred to in the first sentence of this Section 4.2 of the obligations undertaken in this Section 4.2 and in the Confidentiality Agreement. The Co mpany will promptly provide to Holdings and Merger Sub any information concerning the Company and its Subsidiaries provided to any other Person in connection with an Acquisition Proposal which was not previously delivered to Holdings and Merger Sub. The Company shall and shall cause its Subsidiaries to promptly request each Person that has heretofore executed a confidentiality agreement in reasonably customary form connection with its consideration of acquiring the Company or any of its Subsidiaries to promptly return or destroy all written confidential information heretofore 39 furnished to such Person (whether then in the possession of such Person or its advisors or representatives) by or on behalf of the Company or any of its Subsidiaries. The Company agrees not to release any third party from or waive any provisions of confidentiality in any confidentiality agreement to which the Company is a party or by which it is bound. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in this Section 4.2 by any officer, director, affiliate, employee, agent, financial advisor or representative of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 4.2. For purposes of this Agreement, “Acquisition Proposal” means any inquiry, proposal, offer or indication of interest from any Person (other than by or on behalf of Merger Sub or Holdings) relating to any direct or indirect acquisition or purchase (including any single or multiple-step transaction) of a business or assets of the Company or its Subsidiaries that generates 15% or more of the net revenues or net income, or constitutes 15% or more of the assets (as determined with respect to the financial statements contained in the most recent SEC Report and (E) at least three (3) business days filed prior to taking such action, determination) of the Company shall provide written notice or any of its significant Subsidiaries (as defined in Rule 1-02(w) of Regulation S-X promulgated under the Exchange Act) (a “Significant Subsidiary”), or 15% or more beneficial ownership (as determined pursuant to Parent Rule 13d-3 under the Exchange Act) of any class of equity securities of the Company or any of its Significant Subsidiaries, any tender offer or exchange offer that if consummated would result in any Person beneficially owning (as determined pursuant to Rule 13d-3 under the effect that it is taking such actionExchange Act) 15% or more of any class of equity securities of the Company or any of its Significant Subsidiaries or any merger, consolidation, business combination, recapitalization, reorganization, liquidation, dissolution or similar transaction involving the Company or any of its Significant Subsidiaries.
Appears in 1 contract
No Solicitations. (a) The Company represents and warrants that No party shall, nor shall it has terminated, and has caused permit any of its subsidiaries and affiliates, and their respective officers, directors, employees, investment bankers, attorneys, accountants and other advisors or representatives to terminate, any activities, discussions or negotiations relating Subsidiaries to, or that may be reasonably be expected to lead to, any Acquisition Proposal (as hereinafter defined) and will promptly request the return of all confidential information regarding the Company provided to any third party prior to the date of this Agreement pursuant to the terms of any confidentiality agreements. From the date hereof until the termination hereof and except as permitted by the following provisions of this Section 7.1, the Company nor shall not, and shall not it authorize or permit any of its officersofficer, directors or employees or any director, employee, investment banker, financial advisor, attorney, accountant or other advisor agent or Representative representative (each, a "Representative") retained by or acting for or on behalf of it or any of its Subsidiaries to, directly or indirectly, (i) initiate, solicit, initiate encourage, or, unless the Board of Directors believes, on the basis of advice furnished by independent legal counsel, that the failure to take such actions would constitute a breach of applicable fiduciary duties, participate in any negotiations regarding, furnish any confidential information in connection with, endorse or encourage (including by way of furnishing non-public information)otherwise cooperate with, assist, participate in or take any other action to facilitate, any inquiries or facilitate the making of any proposal that constitutes an Acquisition Proposal or any inquiries or making of any proposal that constitutesoffer for, or which may reasonably be expected to lead to, an Acquisition ProposalTransaction (as defined below), by any person, corporation, partnership or other entity or group (ii) participate in any activities, discussions or negotiations regarding an Acquisition Proposala "Potential Acquiror"); provided, however, that subject to compliance by nothing contained in this Section shall prohibit the Company or its Board of Directors from taking and disclosing to its stockholders a position with respect to a tender offer by a Potential Acquiror pursuant to Rules 14d-9 and 14e-2(a) promulgated under the provisions -------- ------- Exchange Act or from making such disclosure to its stockholders which, in the judgment of Section 7.1(bthe Board of Directors based upon the opinion of independent counsel, may be required under applicable law; provided, however, that (i) the Company may furnish or cause to be furnished information concerning the Company and its businesses, properties or assets to a Potential Acquiror (on terms, including confidentiality terms, substantially similar to those set forth in the confidentiality letter dated August 8, 1995 between Parent and the Company), (ii) the Company may engage in discussions or negotiations with a Potential Acquiror, (iii) following receipt of a proposal or offer for an Acquisition Transaction, the Company may take and disclose to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) under the Exchange Act or otherwise make disclosure to the Company's stockholders and (iv) following receipt of a proposal or offer for an Acquisition Transaction the Board of Directors may furnish information towithdraw or modify its recommendation referred to in Section 3.03, or enter into discussions or negotiations with, any person that makes an unsolicited written Acquisition Proposal if, and but in each case referred to in the foregoing clauses (i) through (iv) only to the extent that (A) the Board of Directors of the Company Board, after consultation with its outside legal counsel, determines shall conclude in good faith on the basis of advice from independent counsel that such action is necessary or appropriate in order for the Company such Board of Directors to comply act in a manner which is consistent with its fiduciary duties to the Company's stockholders obligations under applicable law. The Company will immediately cease and cause to be terminated any existing activities, (B) such Acquisition Proposal is not subject discussions or negotiations with any parties conducted heretofore with respect to any financing contingencies Acquisition Transaction. As used in this Agreement, "Acquisition Transaction" means any merger, consolidation or isother business combination involving the Company or any of its Significant Subsidiaries (as defined below) other than LCT, or any acquisition in any manner of all or a substantial portion of the good faith judgment equity of, or all or a substantial portion of the assets of, the Company and its Subsidiaries taken as a whole (without regard to LCT), whether for cash, securities or any other consideration or combination thereof other than pursuant to the transactions contemplated by this Agreement; and "Significant Subsidiary" means any Subsidiary of the Company Board after consultation with that would constitute a nationally recognized financial advisor, reasonably capable Significant Subsidiary of being financed, and is at least as likely to be consummated as is the Merger, (C) the Company Board determines in good faith that such Acquisition Proposal, based upon such matters as it deems relevant (including consultation with a nationally recognized financial advisor) would, if consummated, result in a transaction more favorable to within the Company's stockholders from a financial point meaning of view than Rule 1-02 of Regulation S-X of the Merger (any such more favorable Acquisition Proposal being referred to herein as a "Superior Proposal"), (D) the Company receives from such ----------------- person an executed confidentiality agreement in reasonably customary form and (E) at least three (3) business days prior to taking such action, the Company shall provide written notice to Parent to the effect that it is taking such action.SEC. 32 ARTICLE VI
Appears in 1 contract
