Non-Solicitation. (a) Stockholder shall not, shall cause each of its Subsidiaries not to, and shall not authorize or permit any of its Representatives to, directly or indirectly, (i) solicit, initiate or knowingly encourage, induce or facilitate any Acquisition Proposal or any inquiry, proposal or offer that may reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party. (b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement. (c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction). (d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 5 contracts
Sources: Voting Agreement, Voting Agreement (HRG Group, Inc.), Voting Agreement (HRG Group, Inc.)
Non-Solicitation. The Shareholder hereby covenants and irrevocably agrees that it shall, from the date hereof until the earlier of (i) the termination of this Agreement pursuant to Article 4 and (ii) the Effective Time:
(a) Stockholder shall not, shall cause each of its Subsidiaries not to, and shall not authorize or permit any of its Representatives to, directly or indirectly, through any officer, director, employee, representative (including any financial or other advisor) or agent or otherwise, and shall not permit any such person to:
(i) solicit, initiate assist, initiate, knowingly encourage or knowingly encourageotherwise facilitate (including by way of furnishing or providing copies of, induce access to, or facilitate disclosure of, any Acquisition Proposal confidential information, properties, facilities, books or records of the Company or any of its Subsidiaries or entering into any form of agreement, arrangement or understanding) any inquiry, proposal or offer that may reasonably be expected to lead to constitutes an Acquisition Proposal, ;
(ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, enter into or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, engage or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Person (other than any Purchaser Party that is reasonably expected to make, or has made, an Acquisition Proposal, Purchaser Party Representative) regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal that constitutes or offer may could reasonably be expected to lead constitute an Acquisition Proposal;
(iii) accept, approve, endorse or recommend, or publicly propose to a Superior Proposal (it being understood that accept, approve, endorse or recommend any such communications with any such Third Party shall be limited to the clarification of the original inquiry Acquisition Proposal, or proposal made by such Third Party and shall not include (x) any negotiations take no position or similar discussions remain neutral with respect to, any public Acquisition Proposal; or
(iv) accept, approve, endorse, recommend or execute or enter into or publicly propose to such inquiryaccept, proposal approve, endorse, recommend or offer execute or (y) such Person’s view enter into any agreement, letter of intent, understanding or position with respect thereto) and (B) inform any Person that makes arrangement relating to an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly Proposal.
(but in b) immediately cease and terminate, and cause to be terminated, any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholdersolicitation, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoingencouragement, it is agreed thatdiscussion, if any Representative of Stockholder negotiation, or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not other activities commenced prior to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from with any breach of this Section 3.02 and that the board of directors of the Company determines in good faith Person (after consultation with outside counsel and a financial advisor of nationally recognized reputationother than any Purchaser Party or Purchaser Party Representative) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such any Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.and
(c) Nothing set forth in this Agreement shall apply to or limit immediately notify the Purchaser and the Company, at first orally, and then promptly and in any way a change event within 24 hours in writing, of control any Acquisition Proposal, and shall provide the Purchaser and the Company with copies of Stockholder (or Stockholder’s ultimate publicly traded parent companyall written documents, as applicable) (whether by virtue of a merger, acquisition, consolidation correspondence or other similar transaction)material received by the Shareholder, its affiliates or its, his, or her Representatives in respect of, from or on behalf of any such Person in connection therewith and if not in writing or electronic form, a description of the material terms of such correspondence sent or communicated to the Shareholder, its affiliates or its, his, or her Representatives.
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 5 contracts
Sources: Voting and Support Agreement (Patheon Inc), Voting and Support Agreement (Patheon Inc), Voting and Support Agreement (Patheon Inc)
Non-Solicitation. (a) Stockholder Except as expressly provided in this Article 4, or to the extent Safety Shot has otherwise consented in writing (which consent shall be in Safety Shot’s sole discretion), Yerbaé shall not, and shall cause each of its the Yerbaé Subsidiaries not to, and shall not authorize or permit any of its Representatives to, directly or indirectly, through any of its Representatives (and in so doing shall instruct its and the Yerbaé Subsidiaries’ Representatives not to, directly or indirectly):
(i) solicit, initiate assist, initiate, knowingly encourage or otherwise knowingly encouragefacilitate (including by way of furnishing or providing copies of, induce access to, or facilitate disclosure of, any Acquisition Proposal confidential information, properties, facilities, Books and Records or entering into any form of agreement, arrangement or understanding) any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, ;
(ii) enter into or (iii) otherwise engage or participate in any discussions or negotiations with any Third Party that is reasonably expected to makewith, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything disclose any non-public information or data relating to Yerbaé or the contrary in this AgreementYerbaé Subsidiaries to, any such Person may (Aother than Safety Shot and its Affiliates) seek to clarify the terms and conditions of regarding any inquiry, proposal or offer that constitutes or may reasonably be expected to determine whether such constitute or lead to, an Acquisition Proposal, provided that Yerbaé may (i) advise any Person of the restrictions of this Agreement, and (ii) advise any Person making an Acquisition Proposal that the Yerbaé Board (or the relevant committee thereof) has determined that their Acquisition Proposal does not constitute a Superior Proposal;
(iii) make a Change in Recommendation; or
(iv) accept or enter into or publicly propose to accept or enter into any agreement, understanding, letter of intent, memorandum of understanding, joint venture agreement, or arrangement with any Person (other than Safety Shot or any of its Affiliates) (i) in respect of an Acquisition Proposal or (ii) requiring, intending to cause, or which could reasonably be expected to cause Yerbaé to abandon, terminate or fail to consummate the Arrangement or any other transactions contemplated by this Agreement.
(b) Except as expressly provided in this Article 4, Yerbaé shall, and shall cause the Yerbaé Subsidiaries and their respective Representatives to, immediately cease and terminate, and cause to be terminated, any solicitation, encouragement, discussion, negotiations, or other activities with any Person (other than Safety Shot and its Affiliates) with respect to any inquiry, proposal or offer that constitutes, or may reasonably be expected to constitute or lead to, an Acquisition Proposal, and in connection with such termination shall:
(i) discontinue access to a Superior Proposal (it being understood that and disclosure of all information regarding Yerbaé or any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party Yerbaé Subsidiaries, including any data room, any confidential information, properties, facilities and shall not include Books and Records; and
(xii) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but and in any event within one two (12) Business DayDays) advise request (i) the Company and Spectrum return or destruction of all copies of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder confidential information regarding Yerbaé or any of the Yerbaé Subsidiaries provided to any Person other than Safety Shot and its Subsidiaries takes Representatives, and (ii) the destruction of all material including or incorporating or otherwise reflecting such confidential information regarding Yerbaé or any action of the Yerbaé Subsidiaries, to the extent that would constitute a breach such information has not previously been returned or destroyed, using its commercially reasonable efforts to ensure that such requests are complied with in accordance with the terms of this Section 3.02 if it were authorized such rights.
(c) Any violation of the foregoing Sections 4.1(a) or permitted 4.1(b) by Stockholder, such action shall constitute a breach any Yerbaé Subsidiary or by any Representatives of this Section 3.02 by StockholderYerbaé or any Yerbaé Subsidiary, whether or not such action shall have been Representative is so authorized and whether or permitted by Stockholder not such Representative is purporting to act on behalf of Yerbaé or any of its Subsidiariesthe Yerbaé Subsidiaries or otherwise, unless such Representative shall be deemed to be a breach of this Agreement by Yerbaé.
(d) Yerbaé represents and warrants that it has agreed (not waived any confidentiality, standstill or similar agreement, restriction or covenant in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after effect as of the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from which Yerbaé or any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and Yerbaé Subsidiaries is a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries toparty, and afford access Yerbaé covenants and agrees that (a) Yerbaé shall enforce each confidentiality, standstill or similar agreement, restriction or covenant to the business, properties, assets, books which Yerbaé or records any of the Company Yerbaé Subsidiaries is a party or may hereafter become a party in accordance with Section 4.3, and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking neither Yerbaé nor any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to Yerbaé Subsidiaries have released or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees thatwill, without the prior written consent of SpectrumSafety Shot (which may be withheld or delayed in Safety Shot’s sole and absolute discretion), neither it nor release any Person from, or waive, amend, suspend or otherwise modify such Person’s obligations respecting Yerbaé, or any of its Affiliates shall purchasethe Yerbaé Subsidiaries, directly under any confidentiality, standstill or indirectly, similar agreement or restriction to which Yerbaé or any shares of Saturn Common Stock the Yerbaé Subsidiaries is a party or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stockmay hereafter become a party in accordance with Section 4.3.
Appears in 5 contracts
Sources: Arrangement Agreement (Safety Shot, Inc.), Arrangement Agreement (Safety Shot, Inc.), Arrangement Agreement (Yerbae Brands Corp.)
Non-Solicitation. (a) Each Stockholder shall not, shall cause each of its Subsidiaries not to, and shall not authorize instruct his, her or permit any of its Representatives not to, directly or indirectlyindirectly (a) initiate, solicit or knowingly encourage any inquiries, discussions or proposals regarding any Alternative Proposal (including by providing non-public information to any Person for the purpose of making, evaluating, or determining whether to make or pursue, any inquiries or proposals with respect to any Alternative Proposal), (ib) solicitcontinue, initiate propose, enter into or knowingly encourage, induce or facilitate any Acquisition Proposal or any inquiry, proposal or offer that may reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate participate in any way with, in negotiations or discussions with respect to any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Alternative Proposal, or (iiic) participate enter into any letter of intent, agreement in principle, acquisition agreement or other agreement or understanding providing for any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Alternative Proposal; provided thatprovided, however, that notwithstanding anything to the contrary contained in this Agreement, each Stockholder shall be permitted to (i) inform any such Person may of the existence of the provisions contained in this Agreement, (Aii) seek contact any Person or group of Persons who has made an Alternative Proposal to clarify and understand the terms and conditions thereof, (iii) engage or participate in discussions or negotiations with, provide information to or fully cooperate with, the Person or group of any inquiryPersons who has made a bona fide Alternative Proposal, proposal or offer to determine whether such inquirythe Company, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to and the clarification Representatives of the original inquiry Person or proposal group of Persons who has made by such Third Party and shall not include Alternative Proposal or the Company regarding such Alternative Proposal or otherwise facilitate or fully participate in such Alternative Proposal, (xiv) take any negotiations other action that would be permissible for the Company to take under Section 6.2 of the Merger Agreement or similar discussions (v) to take any action with respect to any Alternative Proposal, including entering into any letter of intent, agreement in principle, acquisition agreement or other agreement or understanding with respect to such inquiryStockholder’s Shares, proposal future employment or offer otherwise; provided that (x) each Stockholder may take the actions set forth in clauses (iii), (iv) and (v) above if, and only during such time as, the Company is permitted, under Section 6.2 of the Merger Agreement, to have discussions or negotiations with respect to such Alternative Proposal and (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed no Stockholder shall be bound by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after 12 from the date of this Agreement and prior to obtaining until the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information Solicitation Period End Time with respect to any action taken at the direction, or with the permission, of the Transaction Committee in connection with an action that the Transaction Committee, the Company and its Subsidiaries to, and afford access to the business, properties, assets, books Board or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior is permitted to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, take under Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 6.2 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 4 contracts
Sources: Support Agreement (Silverberg Elyse Beth), Support Agreement (Lipson Roberta), Support Agreement (Fosun Industrial Co., LTD)
Non-Solicitation. (a) Stockholder Upon execution of this Agreement, Seller shall not, and shall cause each of its Subsidiaries not Representatives to cease immediately and cause to be terminated any and all existing activities, discussions or negotiations with any Person conducted heretofore with respect to, or that may reasonably be expected to lead to, an Acquisition Proposal. Seller shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with or for the benefit of Seller to promptly return or destroy all information, documents, and shall not authorize materials relating to the Acquisition Proposal or permit to Seller or its businesses, operations or affairs heretofore furnished by Seller or any of its Representatives to such Person or any of its Representatives in accordance with the terms of any confidentiality agreement with such Person.
(b) Seller agrees that it shall not, and that it shall cause its Representatives not to, directly or indirectly, (i) initiate, solicit, initiate or knowingly encourage, induce encourage or knowingly facilitate any Acquisition Proposal or the submission of any inquiry, indication of interest, proposal or offer that may constitutes, or would reasonably be expected to lead to to, an Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to makeregarding, or has madefurnish any non-public information to any Person (other than Buyer) in connection with, an Acquisition Proposal, regarding (iii) enter into any letter of intent or agreement related to an Acquisition Proposal (other than a confidentiality agreement as contemplated by Section 5.15(c)), or (iv) approve or recommend an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in For purposes of this Agreement shall apply to Agreement, “Acquisition Proposal” means any inquiry, indication of interest, proposal or limit in offer for any way a change transaction or series of control of Stockholder related transactions involving (or Stockholder’s ultimate publicly traded parent company, as applicablei) (whether by virtue of a merger, acquisitiontender offer, consolidation recapitalization, reorganization, liquidation, dissolution, business combination or consolidation, or any similar transaction, involving Seller or the Business, (ii) a sale, lease, license, exchange, mortgage, pledge, transfer or other similar transaction)acquisition of assets that constitute at least 15% of the Assets, taken as a whole, or (iii) a purchase or other acquisition (including by way of merger, consolidation, stock exchange or otherwise) of beneficial ownership (the term “beneficial ownership” for purposes of this Agreement having the meaning assigned thereto in Section 13(d) of the Exchange Act and the rules and regulations thereunder) of securities representing 15% or more of the voting power of Seller; provided, however, that the term “Acquisition Proposal” shall not include the Contemplated Transactions.
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 4 contracts
Sources: Asset Purchase Agreement (Spindle, Inc.), Asset Purchase Agreement (Spindle, Inc.), Asset Purchase Agreement (Augme Technologies, Inc.)
Non-Solicitation. (a) Stockholder Except as otherwise expressly provided in this Section 5.8, the Company and its Subsidiaries shall not, shall cause each of its Subsidiaries not to, and shall not authorize or permit any of its Representatives to, directly or indirectly, through any officer, director, employee, representative (including any financial or other advisor) or agent of the Company or any of its Subsidiaries (collectively, the “Representatives”):
(i) solicit, initiate initiate, knowingly encourage or otherwise knowingly encouragefacilitate (including by way of furnishing or providing copies of, induce access to, or facilitate disclosure of, any Acquisition Proposal confidential information, properties, facilities, books or records of the Company or any Subsidiary) any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to an Acquisition Proposal;
(ii) enter into, engage in, continue or otherwise participate in any discussions or negotiations with any Person (other than the Purchaser and its Subsidiaries or Affiliates) in respect of any inquiry, proposal or offer that constitutes or may reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding provided that the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek advise any Person of the restrictions of this Agreement, and (B) advise any Person making an Acquisition Proposal that the Board has determined that such Acquisition Proposal does not constitute, or is not reasonably expected to clarify constitute or lead to, a Superior Proposal;
(iii) make the terms Company Change in Recommendation;
(iv) accept, approve, endorse or recommend, or publicly propose to accept, approve, endorse or recommend, or take no position or remain neutral with respect to, any publicly announced Acquisition Proposal (it being understood that publicly taking no position or a neutral position with respect to an Acquisition Proposal for a period of no more than five Business Days following the public announcement of such Acquisition Proposal will not be considered to be in violation of this Section 5.8(a)(iv); provided that the Board has rejected such Acquisition Proposal and conditions affirmed the Company Board Recommendation by press release before the end of such five Business Day period (or in the event that the Company Meeting is scheduled to occur within such five Business Day period, prior to the third Business Day prior to the date of the Company Meeting); provided, further, that the Company shall provide the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as requested by the Purchaser and its counsel); or
(v) accept or enter into, or publicly propose to accept or enter into, any letter of intent, agreement in principle, agreement, arrangement or undertaking relating to any Acquisition Proposal (other than a confidentiality agreement permitted pursuant to Section 5.8(e)).
(b) The Company shall, and shall cause its Subsidiaries and Representatives to immediately cease any existing solicitation, encouragement, discussions, negotiations or other activities commenced prior to the date of this Agreement with any Person (other than the Purchaser and its Subsidiaries or Affiliates) conducted by the Company or any of its Subsidiaries or Representatives with respect to any inquiry, proposal or offer that constitutes, or may reasonably be expected to determine whether constitute or lead to, an Acquisition Proposal, and, in connection therewith, the Company shall:
(i) immediately discontinue access to and disclosure of its and its Subsidiaries’ confidential information (and not allow access to or disclosure of any such confidential information, or any data room, virtual or otherwise); and
(ii) as soon as possible request (and in any case within two Business Days), and exercise all rights it has (or cause its Subsidiaries to exercise any rights that they have) to require the return or destruction of all confidential information (including derivative information) regarding the Company and its Subsidiaries previously provided to any Person (other than the Purchaser) in connection with a possible Acquisition Proposal to the extent such information has not already been returned or destroyed and the Company or its applicable Subsidiary has the right to request such return or destruction pursuant to a confidentiality agreement that is in force and effect, and shall use its reasonable best efforts to ensure that such requests are fully complied with to the extent the Company is entitled.
(c) The Company represents and warrants that neither the Company nor any of its Subsidiaries has waived any standstill, confidentiality, non-disclosure, business purpose, use or similar agreement or restriction to which the Company or any of its Subsidiaries is a party. Subject to Section 5.8(d), the Company covenants and agrees that (i) the Company shall take all necessary action to enforce each standstill, confidentiality, non-disclosure, business purpose, use or similar agreement or restriction to which the Company or any of its Subsidiaries is a party, and (ii) neither the Company nor any of its Subsidiaries nor any of their respective Representatives have released or will, without the prior written consent of the Purchaser, release any Person from, or waive, amend, suspend or otherwise modify such Person’s obligations respecting the Company, or any of its Subsidiaries, under any standstill, confidentiality, non-disclosure, business purpose, use or similar agreement or restriction to which the Company or any of its Subsidiary is a party (it being acknowledged by the Purchaser that the automatic termination or automatic release, in each case pursuant to the terms thereof, of any standstill restrictions of any such agreements as a result of the entering into and announcement of this Agreement shall not be a violation of this Section 5.8(c)).
(d) If the Company, or any of its Subsidiaries or any of their respective Representatives receives:
(i) any inquiry, proposal or offer made after the date of this Agreement that constitutes or may reasonably be expected to constitute or lead to an Acquisition Proposal; or
(ii) any request for copies of, access to, or disclosure of, confidential information relating to the Company or any Subsidiary in connection with any proposal that constitutes or may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited an Acquisition Proposal, including information, access or disclosure relating to the clarification properties, facilities, books or records of the original inquiry Company or proposal any Subsidiary, in each case made by after the date of this Agreement; then, the Company shall promptly and orally notify the Purchaser, and then in writing within 24 hours, of such Third Party and shall not include (x) any negotiations or similar discussions with respect to such Acquisition Proposal, inquiry, proposal or proposal, offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholderrequest, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal, inquiry, proposal, offer or request and the material terms and conditions thereof and copies of all written documents, correspondence or other material received in respect of, from or on behalf of any such Person. Without limiting The Company shall keep the foregoingPurchaser fully informed on a current basis of the status of material developments and (to the extent permitted by Section 5.8(e)) material discussions and negotiations with respect to such Acquisition Proposal, it is agreed thatinquiry, if proposal, offer or request, including any Representative of Stockholder material changes, modifications or other amendments thereto.
(e) Notwithstanding any of its Subsidiaries takes any action that would constitute a breach other provision of this Section 3.02 5.8, if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or at any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after time following the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder ApprovalShareholder Approval having been obtained, the Company receives a request for material non-public information, or to enter into discussions, from a Person that proposes to the Company an unsolicited bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of Proposal, the Company determines may engage in good faith (after consultation or participate in discussions or negotiations with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior such Person regarding such Acquisition Proposal, Stockholder and may (1) engage in negotiations withprovide copies of, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the businessor disclosure of information, properties, assetsfacilities, books or records of the Company or its Subsidiaries, if any only if:
(i) the Board determines, in good faith after consultation with its outside financial and legal advisors, that such Acquisition Proposal constitutes or could reasonably be expected to constitute or lead to a Superior Proposal;
(ii) such Person is not restricted from making an Acquisition Proposal pursuant to an existing standstill, confidentiality, non-disclosure, business purpose, use or similar restriction with the Company or any of its Subsidiaries toSubsidiaries;
(iii) the Company has been, and continues to be, in compliance with its obligations under this Section 5.8 in all material respects; and
(iv) prior to providing any such copies, access or disclosures, the Person Company enters into a confidentiality and standstill agreement with such Person, or group confirms it has previously entered into such an agreement which remains in effect (which confidentiality and their respective Representatives) making such Acquisition Proposal; providedstandstill agreement shall be subject to Section 5.8(c)), that prior to furnishing and any such informationcopies, Stockholder (x) receives from access or disclosure provided to such Person shall have already been (or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (ysimultaneously be) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third PartyPurchaser.
(bf) Notwithstanding anything herein Nothing contained in this Section 5.8 shall prohibit the Board from making disclosure to Company Shareholders as required by applicable Law, including complying with Section 2.17 of Multilateral Instrument 62-104 - Takeover Bids and Issuer Bids and similar provisions under Securities Laws relating to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue provision of a mergerdirectors’ circular in respect of an Acquisition Proposal provided, acquisitionhowever, consolidation that neither the Company nor the Board shall be permitted to recommend that the Company Shareholders tender any securities in connection with any take-over bid that is an Acquisition Proposal or other similar transactioneffect a Company Change in Recommendation with respect thereto, except as permitted by Section 5.8(g).
(dg) Stockholder agrees thatIf the Company receives an Acquisition Proposal that constitutes a Superior Proposal prior to the Shareholder Approval having been obtained, without the Board may, (1) make the Company Change in Recommendation in response to such Superior Proposal and/or (2) cause the Company to terminate this Agreement pursuant to Section 6.1(h) (including payment of the applicable amounts required to be paid pursuant to Section 6.2) and concurrently enter into a definitive agreement with respect to the Superior Proposal (other than a confidentiality agreement permitted by Section 5.8(e)) (a “Proposed Agreement”), if and only if:
(i) the Person making such Superior Proposal is not restricted from making an Acquisition Proposal pursuant to an existing standstill, confidentiality, non-disclosure, business purpose, use or similar restriction;
(ii) the Company has been, and continues to be, in compliance with its obligations under this Agreement;
(iii) the Company or its Representatives have delivered to the Purchaser the information required by Section 5.8(d), as well as a written notice of the determination of the Board that such Acquisition Proposal constitutes a Superior Proposal and of the intention of the Board to make the Company Change in Recommendation and/or terminate this Agreement pursuant to Section 6.1(h) to concurrently enter into the Proposed Agreement with respect to such Superior Proposal, as applicable, together with a written notice from the Board regarding the value that the Board, in consultation with its financial advisors, has determined should be ascribed to any non-cash consideration offered under such Acquisition Proposal (collectively, the “Superior Proposal Notice”);
(iv) in the case of the Board exercising its rights under clause (2) of this Section 5.8(g), the Company or its Representatives have provided the Purchaser a copy of the Proposed Agreement and all supporting materials, including any financing documents with customary redactions supplied to the Company in connection therewith;
(v) five Business Days (the “Response Period”) shall have elapsed from the date on which the Purchaser has received the Superior Proposal Notice and all documentation referred to in Section 5.8(g)(iii) and Section 5.8(g)(iv);
(vi) during any Response Period, the Purchaser has had the opportunity (but not the obligation) in accordance with Section 5.8(h), to offer to amend this Agreement and the terms of the Investment in order for such Acquisition Proposal to cease to be a Superior Proposal;
(vii) after the Response Period, the Board (A) has determined in good faith, after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal continues to constitute a Superior Proposal (if applicable, compared to the terms of the Investment as proposed to be amended by the Purchaser under Section 5.8(h)) and (B) has determined in good faith, after consultation with its outside legal counsel, that the failure by the Board to make the Company Change in Recommendation and/or to cause the Company to terminate this Agreement to enter into the Proposed Agreement, as applicable, would be inconsistent with its fiduciary duties; and
(viii) in the case of the Board exercising its rights under clause (2) of this Section 5.8(g), prior written consent to or concurrently with terminating this Agreement pursuant to Section 6.1(h), the Company enters into such Proposed Agreement and concurrently pays to the Purchaser the amounts required to be paid pursuant to Section 6.2.
(h) During the Response Period, or such longer period as the Company may approve in writing for such purpose: (i) the Board shall review any offer made by the Purchaser under Section 5.8(g)(vi) to amend the terms of Spectrumthis Agreement in good faith in order to determine whether such proposal would, neither it nor upon acceptance, result in the Acquisition Proposal previously constituting a Superior Proposal ceasing to be a Superior Proposal; and (ii) the Company shall negotiate in good faith with the Purchaser to make such amendments to the terms of this Agreement and the Investment as would enable the Purchaser to proceed with the transactions contemplated by this Agreement on such amended terms. If the Board determines that such Acquisition Proposal would cease to be a Superior Proposal, the Company shall promptly so advise the Purchaser, and the Company and the Purchaser shall amend this Agreement to reflect such offer made by the Purchaser, and shall take and cause to be taken all such actions as are necessary to give effect to the foregoing.
(i) Each successive amendment or modification to any Acquisition Proposal or Proposed Agreement that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Company Shareholders or other material terms or conditions thereof shall constitute a new Acquisition Proposal for the purposes of this Section 5.8, and the Purchaser shall be afforded a new five Business Day Response Period from the date on which the Purchaser has received the notice and all documentation referred to in Section 5.8(g)(iii) and Section 5.8(g)(iv) with respect to the new Superior Proposal from the Company.
(j) The Board shall promptly reaffirm the Company Board Recommendation by press release after any Acquisition Proposal which is not determined to be a Superior Proposal is publicly announced or the Board determines that a proposed amendment to the terms of this Agreement as contemplated under Section 5.8(h) would result in an Acquisition Proposal no longer being a Superior Proposal. The Company shall provide the Purchaser and its Affiliates outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall purchasemake all reasonable amendments to such press release as requested by the Purchaser and its counsel.
(k) In circumstances where the Company provides the Purchaser with a Superior Proposal Notice and all documentation contemplated by Section 5.8(g)(iii) and Section 5.8(g)(iv) on a date that is less than seven Business Days prior to the scheduled date of the Company Meeting, directly the Company may either proceed with or indirectlypostpone the Company Meeting to a date that is not more than ten Business Days after the scheduled date of such Company Meeting, and shall postpone the Company Meeting to a date that is not more than ten Business Days after the scheduled date of such Company Meeting if so directed by the Purchaser.
(l) Without limiting the generality of the foregoing, the Company shall advise its Subsidiaries and its Representatives of the prohibitions set out in this Section 5.8 and any shares violation of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.the restrictions set forth
Appears in 4 contracts
Sources: Subscription Agreement (Canopy Growth Corp), Subscription Agreement (Canopy Growth Corp), Subscription Agreement (Constellation Brands, Inc.)
Non-Solicitation. (ai) Stockholder shall not, shall cause each of its Subsidiaries not to, and shall not authorize or permit any of its Representatives to, representatives to directly or indirectly, indirectly (i) solicitinitiate, initiate or knowingly solicit encourage, induce or take any action to facilitate the making of, any Acquisition Proposal offer or any inquiry, proposal which constitutes or offer that may is reasonably be expected likely to lead to an any Acquisition Proposal, (ii) furnish enter into any nonpublic information regarding agreement (other than a confidentiality agreement) with respect to any Acquisition Proposal except in connection with a Superior Proposal in connection with which the Company or afford access to enters into an agreement (including contemporaneously with the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected ) pursuant to make, or is otherwise seeking to make, or has made, an Acquisition ProposalSection 5.3(b) of the Merger Agreement, or (iii) participate in any the event of an unsolicited Acquisition Proposal for the Company or otherwise, engage in negotiations or discussions or negotiations with any Third Party that is reasonably expected to makewith, or has madeprovide any non-public information or data to, an any Person (other than Parent or any of its affiliates or representatives) relating to any Acquisition Proposal. It is understood that this Section 7 limits the rights of Stockholder only to the extent that Stockholder is acting in Stockholder’s capacity as a stockholder of the Company. Nothing herein shall be construed as preventing a Stockholder who is an officer or director of the Company, regarding or any director of the Company who may be deemed to be an Acquisition Proposal; provided thataffiliate of Stockholder, notwithstanding from fulfilling the obligations of such position (including, subject to the limitations contained in Sections 5.2 and 5.3 of the Merger Agreement, the performance of obligations required by the fiduciary obligations of Stockholder, or any director of the Company who may be deemed to be an affiliate of Stockholder, acting solely in his or her capacity as an officer or director).
(ii) Notwithstanding anything to the contrary in this Section 7, if (a) after the Company shall have received an unsolicited bona fide written proposal from a Third Party relating to an Acquisition Proposal and (b) the Board of Directors of the Company has complied with the provisions of Section 5.2(b) of the Merger Agreement, any such Person Stockholder may (A) seek to clarify the terms provide information and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications engage in discussions with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party as and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available that the Company is permitted to such Third Party.
(b) Notwithstanding anything herein do so pursuant to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 terms of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 4 contracts
Sources: Stockholder Agreement (Cendant Corp), Shareholder Agreement (Cendant Corp), Stockholder Agreement (Cendant Corp)
Non-Solicitation. (a) Stockholder shall notNeither BIZ nor Litronic will, shall cause each of its Subsidiaries not to, and shall not nor will it authorize or permit any officer, director, employee, consultant or contractor of its Representatives or any investment banker, attorney, accountant or other advisor or representative of, either party to, directly or indirectly, (i) solicit, initiate or knowingly encourage, induce or facilitate encourage the submission of any Acquisition Proposal (as hereinafter defined) or any inquiry, proposal or offer that may reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to makeregarding, or has madefurnish to any person any information in respect of, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything or take any other action to the contrary in this Agreementfacilitate, any such Person may (A) seek to clarify Acquisition Proposal or any inquiries or the terms and conditions making of any inquiryproposal that constitutes, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (to, any Acquisition Proposal. Notwithstanding the foregoing, in the event that either BIZ or Litronic, as the case may be, receives an unsolicited Acquisition Proposal, it being understood that any such communications with any such Third Party shall be limited entitled to negotiate with the clarification third party making such proposal and to provide information to such third party if the Board of Directors' of either BIZ or Litronic, as the case may be, fiduciary duty to its respective stockholders requires that either BIZ or Litronic, as the case may be, conduct such negotiations and provide such material in order to make its recommendation to its respective stockholders regarding the approval or disapproval of the original inquiry Merger. Each BIZ or proposal made by such Third Party and Litronic, as the case may be, shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of notify the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum other party of any Acquisition Proposal received by Stockholder, (including the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) thereof and the identity of the Person person making it) as promptly as practicable after its receipt thereof, and shall provide the other party with a copy of any written Acquisition Proposal or amendments or supplements thereto, and shall thereafter inform the other party on a prompt basis of the status of any discussions or negotiations with such a third party, and any material changes to the terms and conditions of such Acquisition Proposal, and shall promptly give the other party a copy of any information delivered to such person which has not previously been reviewed by the other party. Without limiting Immediately after the foregoingexecution and delivery of this Agreement, it is agreed thateach of BIZ and Litronic will, if and will use its reasonable best efforts to cause its affiliates, and their respective officers, directors, employees, consultants, contractors, investment bankers, attorneys, accountants and other agents and representatives to, cease and terminate any Representative existing activities, discussions or negotiations with any parties conducted heretofore in respect of Stockholder any possible Acquisition Proposal. Each of BIZ and Litronic shall take all necessary steps to promptly inform the individuals or any of its Subsidiaries takes any action that would constitute a breach entities referred to in the first sentence of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach 7.8 of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above obligations undertaken in this Section 3.02(a)7.8. "Acquisition Proposal" means an inquiry, in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from offer or proposal regarding any breach of this Section 3.02 and that the board of directors of the Company determines in good faith following (after consultation with outside counsel and a financial advisor of nationally recognized reputationother than the transactions contemplated by this Agreement) to be, involving either BIZ or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent companyLitronic, as applicablethe case may be: (v) (whether by virtue of a any merger, acquisitionconsolidation, consolidation share exchange, recapitalization, business combination or other similar transaction).
; (dw) Stockholder agrees thatany sale of shares of capital stock of either BIZ or Litronic, without as the prior written consent case may be, (x) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of Spectrumall or substantially all the assets of either BIZ or Litronic, neither it nor as the case may be, in a single transaction or series of related transactions; (y) any tender offer or exchange offer for 20% or more of the outstanding capital stock of or the filing of a registration statement under the Securities Act in connection therewith; or (z) any public announcement of a proposal, plan or intention to do any of its Affiliates shall purchase, directly the foregoing or indirectly, any shares agreement to engage in any of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stockthe foregoing.
Appears in 4 contracts
Sources: Merger Agreement (SSP Solutions Inc), Merger Agreement (SSP Solutions Inc), Merger Agreement (Shah Kris & Geraldine Family Trust)
Non-Solicitation. (a) Stockholder Shareholder and its subsidiaries shall not, shall cause each of its Subsidiaries not to, and shall use their best efforts to cause their officers, directors, employees or other agents not authorize or permit any of its Representatives to, directly or indirectly, (i) take any action to solicit, initiate or knowingly encourage, induce or facilitate any Acquisition Proposal or any inquiry, proposal or offer that may reasonably be expected to lead to an Acquisition Proposal, (ii) furnish or disclose any nonpublic information regarding the Company relating to Milan or any of its Subsidiaries or afford access to the Company’s business, properties, assets, books or records of Milan or any of its Subsidiaries to, or otherwise knowingly cooperate in any way with, any Third Party Person that is reasonably expected to makemay be considering making, or is otherwise seeking to make, or has made, an Acquisition Proposal or has agreed to endorse an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party third party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions each case other than with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal that has been made for 100% of the restrictions imposed by the provisions issued and outstanding share capital of this Section 3.02Milan. Stockholder shall Shareholder will promptly (but in any event within one five (15) Business DayDays) advise notify the Company and Spectrum upon receipt of any an Acquisition Proposal received or any indication that any Person is considering making an Acquisition Proposal or any request for nonpublic information relating to Milan or any of its Subsidiaries or for access to the properties, books or records of Milan or any of its Subsidiaries by Stockholderany Person that may be considering making, or has made, an Acquisition Proposal and will keep the material terms Company fully informed of the status and conditions details of any such Acquisition Proposal (Proposal, indication or request, including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder indication or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Partyrequest.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 3 contracts
Sources: Shareholder Support Agreement (OncoMed Pharmaceuticals Inc), Shareholder Support Agreement (OncoMed Pharmaceuticals Inc), Shareholder Support Agreement (OncoMed Pharmaceuticals Inc)
Non-Solicitation. (a1) Stockholder shall notThe Company will: (i) immediately cease and cause to be terminated any activities, shall cause discussions or negotiations that may be ongoing with respect to an Acquisition Proposal, including terminating all access to documents and information regarding the Company and/or its Subsidiaries, including through a data room; (ii) promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring all or part of the Company, any of its Subsidiaries not toor a portion of their respective assets other than in the Ordinary Course sale of inventory, and shall not authorize return or permit destroy all non-public information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries; and (iii) enforce and not waive (and cause its Subsidiaries to enforce and not waive) the terms of any such confidentiality agreement and any standstill agreement (or similar covenants contained in any other agreement) to which it (or any of its Subsidiaries) is a party relating to an Acquisition Proposal. Except as expressly permitted by this Article 5, until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 7, the Company will not, except as otherwise provided in the Agreement, and the Company will cause its Representatives, its Subsidiaries and its Subsidiaries’ respective Representatives not to, directly or indirectly, :
(ia) solicit, initiate initiate, knowingly encourage or knowingly encourage, induce or otherwise facilitate (including by way of furnishing any Acquisition Proposal or non-public information) any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, ;
(b) engage or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, Person (other than the Purchaser) regarding an any Acquisition Proposal; provided thathowever, notwithstanding anything to that the contrary in Company may ascertain facts from the Person making such Acquisition Proposal for the sole purpose of the Board informing itself about such Acquisition Proposal and the Person that made it and the Company may, for a period of seven (7) Business Days following the receipt of such Acquisition Proposal, advise any Person of the restrictions of this Agreement, communicate with any such Person may (A) seek to clarify solely for the purpose of clarifying the terms and conditions of any inquiry, proposal or offer made by such Person and advise any Person making an Acquisition Proposal that the Board has determined that such Acquisition Proposal does not constitute a Superior Proposal;
(c) (i) withhold, withdraw, modify or qualify, or publicly propose to determine whether such inquirywithhold, proposal withdraw, modify or offer may qualify, the Board Recommendation; (ii) make, or permit any Representative of the Company or any of its Subsidiaries to make, any public statement in connection with the Meeting by or on behalf of the Board that would reasonably be expected to lead have the same effect; or (iii) accept, approve, endorse or recommend, or publicly propose to a Superior accept, approve, endorse or recommend, any Acquisition Proposal (the actions in this clause (c), an “Adverse Recommendation Change”);
(d) accept, approve, endorse, recommend, or publicly propose to accept, approve, endorse or recommend, or take no position or remain neutral with respect to, any publicly disclosed or publicly announced Acquisition Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions taking no position with respect to a publicly disclosed or publicly announced Acquisition Proposal for a period of no more than five (5) Business Days following the formal announcement of such inquiryAcquisition Proposal will not be considered to be in violation of this Section 5.1 provided the Board has rejected such Acquisition Proposal and affirmed the Board Recommendation before the end of such five (5) Business Day period); or
(e) accept, proposal approve, endorse, recommend or offer enter into or publicly propose to accept approve, endorse, recommend or enter into, any agreement, any letter of intent, understanding, agreement or arrangement (yother than a confidentiality agreement entered into in compliance with Section 5.2(1)(c)) such Person’s view or position with respect thereto) and (B) inform any Person that makes relating to an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger “Alternative Transaction Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction”).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 3 contracts
Sources: Arrangement Agreement (Trulieve Cannabis Corp.), Arrangement Agreement (Harvest Health & Recreation Inc.), Arrangement Agreement
Non-Solicitation. (a) Stockholder Each of the Company and Parent agrees that it shall not, and shall cause each of its Subsidiaries not to, and shall use its reasonable best efforts to cause its Subsidiaries’ Representatives not authorize or permit any of its Representatives to, directly or indirectly, : (i) solicit, initiate initiate, seek or knowingly encourage, induce encourage (including by way of furnishing information) or knowingly take any other action designed to facilitate any Acquisition Proposal inquiries or the making or submission of any inquiry, proposal or offer that may reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding it or any of its Subsidiaries to any person (other than the Company other parties to this Agreement) in connection with or afford access in response to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) engage or participate in any discussions or negotiations with any Third Party that is reasonably expected person (other than the other parties to make, or has made, an this Agreement) with respect to any Acquisition Proposal, regarding an (iv) approve, endorse or recommend any Acquisition ProposalProposal or (v) enter into any letter of intent, agreement in principle or other agreement providing for any Acquisition Transaction (except as contemplated by Section 7.1(i)); provided thatprovided, notwithstanding anything to the contrary in however, that this Agreement, any such Person may Section 5.3 shall not prohibit (A) seek Parent and the Company, or their respective Boards of Directors, directly or indirectly through any affiliate, director, officer, employee or Representative, prior to clarify the terms and conditions receipt of such party’s Stockholder Approval, from furnishing nonpublic information regarding such party or any inquiryof such party’s respective Subsidiaries to, proposal or offer entering into or participating in discussions or negotiations with, any person in response to determine whether (x) an unsolicited, written Acquisition Proposal that the Board of Directors of such inquiryparty concludes in good faith, proposal after consultation with its financial advisors, constitutes or offer may could reasonably be expected to lead to a Superior Offer, or (y) an unsolicited inquiry relating to a Acquisition Proposal by a person that the Board of Directors of such party determines is credible and reasonably capable of making a Superior Offer (it being understood that an “Inquiry”), if (1) such Acquisition Proposal or Inquiry did not result from a breach of this Section 5.3(a) (other than any such communications with any breach that is unintentional and immaterial in effect), (2) such Third Party shall be limited party gives to the clarification other party the notice required by Section 5.3(b) and (3) such party furnishes any nonpublic information provided to the maker of the original inquiry Acquisition Proposal or proposal made by Inquiry only pursuant to a confidentiality agreement between such Third Party party and such person on terms no less favorable to the other party than the Confidentiality Agreement (provided that such confidentiality agreement shall not include (x) in any negotiations or similar discussions way restrict such party from complying with its disclosure obligations under this Agreement, including with respect to such inquiryproposal), proposal and such furnished information is delivered promptly to the other party (to the extent such information has not been previously furnished or offer made available by such party to the other party) or (y) such Person’s view or position with respect thereto) and (B) inform Parent and the Company from taking and disclosing to its respective stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to any Person Acquisition Proposal; provided, however, that makes an Acquisition Proposal of compliance with such rules shall not in any way limit or modify the restrictions imposed by the provisions effect that any action taken pursuant to such rules has under any other provision of this Section 3.02. Stockholder Agreement and in no event shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum such party or such party’s Board of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder Directors or any of its Subsidiaries takes a committee thereof take any action that would constitute a breach Change of this Recommendation in respect of a Company Acquisition Proposal other than in compliance with Section 3.02 if 5.3(d).
(b) Each of Parent and the Company shall promptly, and in no event later than 24 hours, after its receipt of any Acquisition Proposal or any request for nonpublic information relating to it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its SubsidiariesSubsidiaries in connection with an Acquisition Proposal, unless advise the other party orally and in writing of such Representative has agreed Acquisition Proposal or request, including providing the identity of the person making or submitting such Acquisition Proposal or request, and, (x) if it is in writing, a copy of such Acquisition Proposal and any capacityrelated draft agreements and (y) in if oral, a writing enforceable by such party not to take reasonably detailed summary of any such actionAcquisition Proposal or request that is made or submitted by any person during the period between the date hereof and the Closing. Notwithstanding Each of Parent and the restrictions set forth above Company shall keep the other reasonably informed in all material respects on a current basis with respect to the status and details of, including any change to the status or material terms of, any such Acquisition Proposal.
(c) Upon the execution of this Section 3.02(a)Agreement, in each of the event that Stockholder receivesCompany and Parent shall, after and shall cause their respective Subsidiaries and their and their Subsidiaries respective officers, directors and employees, and shall use their reasonable best efforts to cause their and their Subsidiaries respective Representatives to, immediately cease and terminate any discussions existing as of the date of this Agreement between or any of their Subsidiaries or any of their respective officers, directors, employees or Representatives and any person (other than the parties to this Agreement) that relate to any Acquisition Proposal and, to the extent provided by the applicable confidentiality agreement or similar agreement governing such discussions, require any third party to such discussions to return to such party or to destroy all confidential information of such party and its Subsidiaries.
(d) Except as contemplated by this Section 5.3(d), neither the Board of Directors of Parent or the Company, respectively, nor any respective committee thereof shall (i) (A) withhold, withdraw, qualify or modify, or resolve to or publicly propose to withhold, withdraw, qualify or modify their respective Recommendations in a manner adverse to the other party, (B) fail to reaffirm or re-publish their respective Recommendations within five days of being requested by the other party to do so (provided that, the other party shall not make more than two such requests) or (C) approve, adopt or recommend any Acquisition Proposal (each such action set forth in clauses (A) through (C) above being a “Company Change of Recommendation”) or (ii) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, a merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other similar contract (other than the confidentiality agreement referred to in Section 5.3(a)) or any tender offer providing for, with respect to, or in connection with any Acquisition Proposal. Notwithstanding the foregoing, the Board of Directors of Parent or the Company, respectively, may at any time prior to obtaining the ▇▇▇▇▇▇ receipt of their requisite Stockholder Approval, in respect of a bona fide written Acquisition Proposal, (i) make a Change of Recommendation and/or (ii) terminate this Agreement pursuant to Section 7.1(i) of this Agreement, if and only if: (A) an Acquisition Proposal is made to such party by a third party, and such offer is not withdrawn; (B) such party’s Board of Directors determines after consultation with its financial advisors that did not result from any breach such offer constitutes a Superior Offer; (C) the Board of this Section 3.02 and that the board Directors of directors of the Company such party determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputationlegal counsel) that failure to be, or take such action would be reasonably likely to be reasonably expected to lead to, a Superior Proposal, Stockholder may inconsistent with the exercise by the Board of Directors of its duties under applicable Laws; (1D) engage in negotiations with, furnish any information with respect the Board of Directors of such party has provided to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides other party five business days prior written notice of its intent to Spectrum take such action (which notice shall include the reasonable details regarding the cause for, and nature of, such party’s Change of Recommendation) and, if requested by the other party, negotiate in good faith with the other party during such five business day period regarding revisions to this Agreement which would avoid such Change of Recommendation and/or termination. The Board of Directors of Parent and the Company; provided, furtherrespectively, that all such information is provided or made available to Spectrum and the Company (may not, in respect of a Acquisition Proposal, make a Change of Recommendation in a manner adverse to the extent not previously provided or made availableother party except in compliance in all respects with this Section 5.3(d) substantially concurrently with it being provided or made available and Section 7.1(i). For the avoidance of doubt, a change of Recommendation to such Third Party“neutral” is a Change of Recommendation.
(be) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth As used in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.Agreement:
Appears in 3 contracts
Sources: Merger Agreement (Vertro, Inc.), Merger Agreement (Inuvo, Inc.), Merger Agreement (Vertro, Inc.)
Non-Solicitation. Each Shareholder hereby covenants and irrevocably agrees that it shall, from the date hereof until the earlier of (i) the termination of this Agreement pursuant to Article 4 and (ii) the Effective Time:
(a) Stockholder shall not, shall cause each of its Subsidiaries not to, and shall not authorize or permit any of its Representatives to, directly or indirectly, through any officer, director, employee, representative (including any financial or other advisor) or agent or otherwise, and shall not permit any such person to:
(i) solicit, initiate assist, initiate, knowingly encourage or knowingly encourageotherwise facilitate (including by way of furnishing or providing copies of, induce access to, or facilitate disclosure of, any Acquisition Proposal confidential information, properties, facilities, books or records of the Company or any of its Subsidiaries or entering into any form of agreement, arrangement or understanding) any inquiry, proposal or offer that may reasonably be expected to lead to constitutes an Acquisition Proposal, ;
(ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, enter into or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, engage or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Person (other than any Purchaser Party that is reasonably expected to make, or has made, an Acquisition Proposal, Purchaser Party Representative) regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal that constitutes or offer may could reasonably be expected to lead constitute an Acquisition Proposal;
(iii) accept, approve, endorse or recommend, or publicly propose to a Superior Proposal (it being understood that accept, approve, endorse or recommend any such communications with any such Third Party shall be limited to the clarification of the original inquiry Acquisition Proposal, or proposal made by such Third Party and shall not include (x) any negotiations take no position or similar discussions remain neutral with respect to, any public Acquisition Proposal; or
(iv) accept, approve, endorse, recommend or execute or enter into or publicly propose to such inquiryaccept, proposal approve, endorse, recommend or offer execute or (y) such Person’s view enter into any agreement, letter of intent, understanding or position with respect thereto) and (B) inform any Person that makes arrangement relating to an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly Proposal.
(but in b) immediately cease and terminate, and cause to be terminated, any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholdersolicitation, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoingencouragement, it is agreed thatdiscussion, if any Representative of Stockholder negotiation, or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not other activities commenced prior to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from with any breach of this Section 3.02 and that the board of directors of the Company determines in good faith Person (after consultation with outside counsel and a financial advisor of nationally recognized reputationother than any Purchaser Party or Purchaser Party Representative) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such any Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.and
(c) Nothing set forth in this Agreement shall apply to or limit immediately notify the Purchaser and the Company, at first orally, and then promptly and in any way a change event within 24 hours in writing, of control any Acquisition Proposal, and shall provide the Purchaser and the Company with copies of Stockholder (or Stockholder’s ultimate publicly traded parent companyall written documents, as applicable) (whether by virtue of a merger, acquisition, consolidation correspondence or other similar transaction)material received by the Shareholder, its affiliates or its, his, or her Representatives in respect of, from or on behalf of any such Person in connection therewith and if not in writing or electronic form, a description of the material terms of such correspondence sent or communicated to the Shareholder, its affiliates or its, his, or her Representatives.
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 3 contracts
Sources: Voting and Support Agreement (Patheon Inc), Voting and Support Agreement (Patheon Inc), Voting and Support Agreement (Patheon Inc)
Non-Solicitation. 11.1 Except as expressly permitted by this clause 11, from the date hereof and continuing until the Offer Closing Date or, if earlier, the termination of this Agreement in accordance with clause 15, the Company undertakes that:
(a) Stockholder shall notit shall, and shall cause each of its Subsidiaries not subsidiaries to, and shall direct its and their respective directors, officers, employees, agents, Company Financial Advisers, counsel and other advisers (collectively, the “Company Representatives”) to, immediately cease and cause to be terminated all existing solicitations, discussions, negotiations and communications with any persons with respect to any Competing Proposal and shall request that each such person and any other persons who have made or have indicated an intention to make a Competing Proposal promptly return or destroy any confidential information previously furnished by the Company; and
(b) it shall not, and it shall cause its subsidiaries and the Company Representatives not authorize or permit any of its Representatives to, directly or indirectly, :
(i) grant any waiver or release under, or terminate, any “standstill” or similar obligation with respect to the Company or any of its subsidiaries;
(ii) encourage, solicit, initiate or knowingly encourage, induce or facilitate any Acquisition discussions or negotiations with any person or persons (other than AMEC or any affiliate or associate of AMEC) concerning any Competing Proposal or otherwise seeking to procure any Competing Proposal;
(iii) furnish to any person other than AMEC any non-public information regarding the Company or any of its subsidiaries, afford to any person (other than AMEC or designees of AMEC) access to the business or to the properties, assets, books, records or non-public information, or to any personnel, of the Company or any of its subsidiaries, in any such case that would reasonably be expected to result in the making, submission or announcement of, or for the purpose of encouraging, soliciting, initiating, facilitating or otherwise procuring, a Competing Proposal or any inquiry, proposal or offer inquiries that may would reasonably be expected to lead to an Acquisition a Competing Proposal;
(iv) approve, endorse, recommend, execute or enter into any agreement, letter of intent or contract with respect to a Competing Proposal or otherwise relating to or that is intended to or would reasonably be expected to lead to any Competing Proposal or enter into any agreement, arrangement, or understanding requiring it to abandon, modify, amend, terminate or fail to consummate the Offer or any other transactions contemplated by this Agreement;
(iiv) furnish submit any nonpublic information regarding Competing Proposal or any matter related thereto to the vote of the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate Shareholders unless and until there has been a Change of Company Recommendation in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or accordance with clause 6.2;
(iiivi) participate in any discussions or negotiations with any Third Party third party with respect to any Competing Proposal;
(vii) adopt, authorise or approve a Competing Proposal or publicly propose to recommend any Competing Proposal; or
(viii) subject to clause 6.2, authorise, propose, commit, resolve or agree to do any of the foregoing; provided, however, that is nothing contained in this clause 11 shall prohibit the Company or any of the Company Representatives or the Company Board from (A) taking and disclosing to the Company Shareholders, or any third parties or Governmental Authorities, a position with respect to a Competing Proposal initiated by a third party (including a position contemplated by Rule 14d-9, Rule 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act) or (B) from making such other disclosure to the Company Shareholders, or any third parties or Governmental Authorities to the extent in the case of either (A) or (B), if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to make such disclosure would reasonably be expected to makebe inconsistent with the Company Directors’ fiduciary duties under applicable Laws; provided, however, that no such disclosure shall (a) have the substantive effect of withholding, withdrawing or has madeamending or modifying the Company Recommendation in a manner adverse to AMEC or (b) fail to reaffirm the Company Recommendation, an Acquisition Proposalif such disclosure is to Company Shareholders or in a public announcement and in each case in circumstances in which the reaffirmation of the Company Recommendation would be reasonably expected, regarding an Acquisition Proposal; provided thatin each case, notwithstanding unless in accordance with clause 6.2.
11.2 Notwithstanding anything to the contrary contained in this Agreementclause 11, if at any time following the date hereof and prior to the Offer Closing: (a) the Company has received a bona fide written Competing Proposal from a third party that did not result from the Company’s material breach of this clause 11, which Competing Proposal was made on or after the date hereof, and such Person may Competing Proposal has not been withdrawn, and (b) the Company Board determines in good faith (after consultation with its outside counsel and outside financial advisers) that (i) failure to take any of the actions described in clauses (A) seek to clarify the terms and conditions of any inquiry, proposal through (E) below would likely constitute or offer to determine whether such inquiry, proposal or offer may would reasonably be expected to result in a breach of its fiduciary duties under applicable Laws or (ii) such Competing Proposal constitutes or is reasonably likely to lead to a Superior Proposal Proposal, then the Company may (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (xA) any negotiations or similar discussions furnish information with respect to the Company and its subsidiaries, and afford access to the business or to the properties, assets, books, records or non-public information, or to any personnel, of the Company and its subsidiaries, to the person making such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) Competing Proposal and its representatives; (B) inform initiate or participate in discussions or negotiations with the person making such Competing Proposal and its representatives regarding such Competing Proposal; (C) grant any Person waiver or release under, or terminate, any “standstill” or similar obligation with respect to the Company or any of its subsidiaries to the extent required in connection with making (but not consummating) such Competing Proposal; (D) take any other action in connection with such Competing Proposal that makes an Acquisition Proposal any court of competent jurisdiction orders the Company to take; and (E) propose, resolve or agree to do any of the restrictions imposed by foregoing; provided, however, that the provisions of this Section 3.02Company will not, will not permit its subsidiaries to, and will not authorise the Company Representatives to, disclose any non-public information regarding the Company to such person without first entering into an Acceptable Confidentiality Agreement with such person. Stockholder shall The Company will (1) promptly (but and in any event within one (1) Business DayDay following receipt) advise provide written notice to AMEC of the Company and Spectrum receipt of any Acquisition Competing Proposal, which notification shall include (i) the applicable written Competing Proposal received by Stockholder(or, if oral, the material terms and conditions of any such Acquisition Proposal (including any material changes theretoCompeting Proposal) and (ii) the identity of the Person person making such Competing Proposal and (2) promptly provide to AMEC any material information concerning the Company or its subsidiaries provided or made available to such other person (or its representatives) that was not previously provided or made available to AMEC.
11.3 AMEC and the Company acknowledge and hereby agree that any violation of the restrictions set forth in this clause 11 by any of the Company Representatives (in the case of any such Acquisition Proposal. Without limiting Company Representative who is an investment banker, financial adviser, attorney, accountant or other adviser, to the foregoing, it extent that such Company Representative is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute has been engaged by the Company in connection with the transactions contemplated hereby whether or not the engagement has terminated) shall be deemed to be a breach of this Section 3.02 if it were authorized or permitted clause 11 by Stockholderthe Company.
11.4 Notwithstanding anything herein to the contrary, such action shall constitute a breach at any time prior to the Expiration Time, the Company Board may (in addition to the rights of this Section 3.02 by Stockholderthe Company to take the actions referred to in clause 11.2 in the circumstances contemplated therein), whether or not such action shall have been authorized or permitted by Stockholder or take any of its Subsidiariesthe actions listed in clause 11.1(b) if: (a) the Company notifies AMEC, unless such Representative has agreed in writing, at least three (in any capacity3) in a writing enforceable by such party not to take Business Days (the “Notice Period”) before taking any such action. Notwithstanding , of its intention to take such action with respect to a Superior Proposal, which notice shall state the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, Company has received a bona fide written Acquisition Competing Proposal (that did not result from any a material breach of this Section 3.02 clause 11) which the Company Board intends to declare a Superior Proposal; (b) the Company offers AMEC the opportunity to negotiate during the Notice Period in good faith to make such adjustments to the terms and conditions of this Agreement so that such Competing Proposal ceases to be a Superior Proposal (it being understood and agreed that in the board event of directors an amendment altering any material term or terms of such Superior Proposal: (i) upon each of the first and second such amendments, the Company shall notify AMEC in writing and AMEC shall have an additional one (1) Business Day period from the date of such notice to so negotiate; and (ii) in the event of any further amendments thereafter, the Company shall not be obliged to notify AMEC and AMEC shall not have any additional period to so negotiate); and (c) the Company Board determines in good faith (after consultation with outside counsel and a outside financial advisor advisers) that such Competing Proposal, taking into account any changes to the terms and conditions of nationally recognized reputation) to bethis Agreement proposed by AMEC during the Notice Period (and by the relevant third party in respect of its Competing Proposal), or to be reasonably expected to lead to, constitutes a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 3 contracts
Sources: Implementation Agreement (Amec PLC), Implementation Agreement (Amec PLC), Implementation Agreement (Foster Wheeler Ag)
Non-Solicitation. From the date of this Agreement until the Effective Time or, if earlier, the valid termination of this Agreement in accordance with Section 11.01, the Company shall not, shall cause its Subsidiaries not to and shall use its reasonable best efforts to cause its and their respective Representatives not to, directly or indirectly: (a) Stockholder shall notinitiate, solicit or knowingly encourage or knowingly facilitate any inquiries or requests for information with respect to, or the making of, any inquiry regarding, or any proposal or offer that constitutes, or could reasonably be expected to result in or lead to, any Acquisition Proposal; (b) engage in, continue or otherwise participate in any negotiations or discussions concerning, or provide access to any of its properties, books or records or any confidential information or data to, any Person relating to any proposal, offer, inquiry or request for information that constitutes, or could reasonably be expected to result in or lead to, any Acquisition Proposal; (c) furnish any non-public information regarding the Company or any of its Subsidiaries or access to any of the properties, assets or employees of the Company or any of its Subsidiaries to any Person with respect to, or the making of, any inquiry regarding, or any proposal or offer that constitutes, or could reasonably be expected to result in or lead to, any Acquisition Proposal; (d) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Acquisition Proposal; (e) execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, confidentiality agreement, merger agreement, acquisition agreement, exchange agreement, joint venture agreement, partnership agreement, option agreement or other similar agreement for or relating to any Acquisition Proposal; (f) submit any Acquisition Proposal to the stockholders of the Company; or (g) resolve or agree to do any of the foregoing. The Company also agrees that, immediately following the execution of this Agreement, it shall, and shall cause each of its Subsidiaries not to, to and shall not authorize or permit any of use its reasonable best efforts to cause its and their respective Representatives to, directly or indirectly, (i) solicitcease any solicitations, initiate discussions or knowingly encourage, induce or facilitate negotiations with any Person (other than the parties hereto and their respective Representatives) conducted heretofore in connection with any Acquisition Proposal or any inquiry, proposal inquiry or offer request for information that may could reasonably be expected to lead to to, or result in, an Acquisition Proposal, Proposal and (ii) furnish terminate access to any nonpublic information regarding physical or electronic data room maintained by or on behalf of the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach and within three Business Days of the execution of this Section 3.02 if Agreement, instruct each Person that has prior to the date hereof executed a confidentiality agreement in connection with its consideration of acquiring the Company to return or destroy all confidential information furnished to such Person by or on behalf of it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not Subsidiaries prior to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Partyhereof.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 3 contracts
Sources: Merger Agreement (Gores Holdings VIII Inc.), Merger Agreement (Gores Metropoulos II, Inc.), Merger Agreement (Gores Holdings VI, Inc.)
Non-Solicitation. (a1) Stockholder shall notExcept as expressly provided in this Article 7, shall cause each of its Subsidiaries not toneither Party shall, and shall not directly or indirectly, do or authorize or permit any of its Representatives toto do, directly or indirectly, any of the following:
(ia) solicit, initiate or knowingly encourageencourage or otherwise facilitate (including by way of furnishing or providing copies of, induce access to, or facilitate disclosure of, any confidential information, properties, facilities, books or records of a Party or any subsidiary) any Acquisition Proposal in respect of such Party or any inquiries, proposals or offers relating to any Acquisition Proposal or that could reasonably be expected to lead to an Acquisition Proposal in respect of such Party;
(b) enter into, engage in, continue or otherwise participate in any discussions or negotiations with any person (other than the other Party hereto) regarding any Acquisition Proposal in respect of such Party or any inquiries, proposals or offers relating to any Acquisition Proposal or that could reasonably be expected to constitute or lead to an Acquisition Proposal in respect of such Party;
(c) accept, approve, endorse or recommend, or publicly propose to accept, approve, endorse or recommend, or take no position or remain neutral with respect to, any Acquisition Proposal (it being understood that publicly taking no position or a neutral position with respect to a publicly announced or otherwise publicly disclosed Acquisition Proposal for a period of no more than five business days will not be considered to be in violation of this Section 7.1 provided the board of directors of the Party subject to the Acquisition Proposal has rejected such Acquisition Proposal and affirmed the Alacer Board Recommendation or the SSR Board Recommendation, as the case may be, before the end of such five business day period (or, in the event that the Alacer Meeting or the SSR Meeting, as the case may be, is scheduled to occur within such five business day period, prior to the third business day prior to the date of the Alacer Meeting or SSR Meeting, as the case may be)); or
(d) accept, execute or enter into, or publicly propose to accept, execute or enter into, any letter of intent, agreement in principle, agreement, arrangement or understanding in respect of an Acquisition Proposal (other than a confidentiality and standstill agreement contemplated under Section 7.3(1)).
(2) Each Party shall, and shall cause its Representatives to, immediately cease and terminate, and cause to be terminated, any existing solicitation, encouragement, discussion, negotiation, or other activities commenced prior to the date of this Agreement with any person (other than the other Party hereto) with respect to any inquiry, proposal or offer that constitutes or could reasonably be expected to constitute or lead to, an Acquisition Proposal, and in connection therewith, each Party will:
(a) immediately discontinue access to and disclosure of any of its confidential information, including any data room and any confidential information, properties, facilities, books and records of such Party or of any of its subsidiaries; and
(b) within two business days of the date of this Agreement request (i) the return or destruction of all copies of any confidential information regarding such Party or any of its subsidiaries provided to any person who has entered into a confidentiality agreement or similar agreement with such Party relating to an Acquisition Proposal or any inquiry, proposal or offer that may could reasonably be expected to lead to an Acquisition Proposal, Proposal and (ii) furnish any nonpublic the destruction of all material including or incorporating or otherwise reflecting such confidential information regarding such Party or any of its subsidiaries, using its commercially reasonable efforts to ensure that such requests are fully complied with in accordance with the Company terms of such rights or afford access entitlements.
(3) Each Party represents that it has not, in the year prior to the Company’s businessdate of this Agreement, propertieswaived any confidentiality, assets, books standstill or records to, similar agreement or otherwise knowingly cooperate in restriction to which such Party or any way with, any Third Party that of its subsidiaries is reasonably expected a party relating to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or and each Party further covenants and agrees that (iiii) participate in any discussions or negotiations with any Third Party that is reasonably expected it shall take all necessary action to makeenforce each confidentiality, or has madestandstill, an Acquisition Proposalnon-disclosure, regarding an Acquisition Proposal; provided thatnon-solicitation, notwithstanding anything to the contrary in this Agreementuse, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations business purpose or similar discussions with respect agreement, restriction or covenant to which such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder Party or any of its Subsidiaries takes any action that would constitute subsidiaries is a breach of this Section 3.02 if it were authorized or permitted by Stockholderparty and (ii) neither it, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or nor any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees thatRepresentatives will, without the prior written consent of Spectrumthe other Party (which may be withheld or delayed in the other Party’s sole and absolute discretion), neither it nor release any person from, or waive, amend, suspend or otherwise modify such person’s obligations respecting such Party, or any of its Affiliates subsidiaries, under any confidentiality, standstill, non-disclosure, non-solicitation, use, business purpose or similar agreement, restriction or covenant to which such Party or any of its subsidiaries is a party; provided, however, that the Parties acknowledge and agree that the automatic termination or release of any such agreement, restriction or covenant in accordance with their terms as a result of the entering into and announcement of this Agreement shall purchase, directly or indirectly, not be a violation of this Section 7.1(3).
(4) Each Party shall advise its Representatives of the prohibitions set out in this Article 7 and any shares violation of Saturn Common Stock or securities the restrictions set forth in this Article 7 by a Party’s Representatives is deemed to be a breach of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stockthis Article 7 by such Party.
Appears in 3 contracts
Sources: Arrangement Agreement (SSR Mining Inc.), Arrangement Agreement, Arrangement Agreement
Non-Solicitation. (a) Stockholder shall notThe Company agrees that, shall cause each except as expressly contemplated hereby, neither it nor any of its Subsidiaries shall, and the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to cause its and their respective Representatives not to, and shall not authorize directly or permit indirectly (i) initiate, seek or solicit, or knowingly encourage or facilitate (including by way of furnishing non-public information) or take any of its Representatives toother action that is reasonably expected to promote, directly or indirectly, (i) solicit, initiate any inquiries or knowingly encourage, induce the making or facilitate submission of any Acquisition Proposal or any inquiry, proposal or offer that may constitutes, or could reasonably be expected to lead to, an Acquisition Proposal with respect to the Company; (ii) participate or engage in discussions (except to notify a Person that makes an inquiry, offer or proposal related to an Acquisition Proposal with respect to the Company of the existence of the provisions of this Section 6.04 or to clarify whether any such inquiry, offer or proposal constitutes an Acquisition Proposal with respect to the Company) or negotiations with, or disclose any non-public information or data relating to the Company or any of its Subsidiaries or afford access to the properties, books or records of the Company or any of its Subsidiaries to, any Person or group of Persons (or any of their Affiliates or Representatives) that is seeking to make, has made or could be reasonably expected to make, or otherwise in connection with, an Acquisition Proposal with respect to the Company, (iii) enter into any Contract (or any letter of intent, memorandum of understanding, agreement in principle or other similar contract or agreement) with respect to an Acquisition Proposal with respect to the Company (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.04), (iv) take any action or exempt any third party from the restrictions on “business combinations” or any similar provision contained in any applicable Takeover Law or the Company’s Organizational Documents or grant a waiver under Section 203 of the DGCL, or (v) resolve, publicly propose or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and instruct its and their respective Representatives to, immediately upon the execution of this Agreement cause to be terminated any solicitation, encouragement, discussion or negotiation with or involving any Person or group of Persons, or any of their Affiliates (other than Parent or its Affiliates), conducted heretofore by the Company or any Subsidiary thereof or any of its or their respective Representatives, with respect to an Acquisition Proposal or which could reasonably be expected to lead to an Acquisition Proposal, and, in connection therewith, the Company shall immediately discontinue access by any Person or group of Persons, and any of their Affiliates (iiother than Parent or its Affiliates), to any data room (virtual or otherwise) furnish any nonpublic information regarding established by the Company or afford access its Representatives for such purpose. Within two (2) Business Days from the date of this Agreement, the Company shall request the return or destruction of all confidential, non-public information provided to third parties that have entered into confidentiality agreements with the Company’s business, properties, assets, books Company or records to, or otherwise knowingly cooperate any Subsidiary thereof in connection with consideration of any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding . Notwithstanding anything to the contrary in this Agreement, prior to obtaining the Company Stockholder Approval, the Company and the Company Board may take any such Person may actions described in clause (ii) of this Section 6.04(a) with respect to a third party if (A) seek the Company receives a bona fide unsolicited written Acquisition Proposal with respect to clarify the terms Company from such third party after the date of this Agreement (and conditions such Acquisition Proposal did not result from a violation of any inquirythis Section 6.04) and (B) such proposal constitutes, and the Company Board determines in good faith (after consultation with its financial advisor and outside legal counsel) that such proposal constitutes or offer to determine whether such inquiry, proposal or offer may could reasonably be expected to lead to to, a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to the Company, and, after consultation with outside legal counsel, that failure to take such inquiry, proposal or offer or (y) action would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided that the Company may deliver non-public information to such Person’s view or position third party only pursuant to a confidentiality agreement containing terms no less favorable to the Company with respect theretoto confidentiality than the terms of the Confidentiality Agreement and that does not include any provision calling for any exclusive right to negotiate with any third party or otherwise having the effect of prohibiting the Company from satisfying any of its obligations hereunder (an “Acceptable Confidentiality Agreement”) so long as the Company (I) concurrently provides to Parent any information and data concerning the Company or any Subsidiary or access provided to such third party that was not previously made available to Parent, and (BII) inform any Person that makes an Acquisition Proposal sends a copy of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall such Acceptable Confidentiality Agreement to Parent promptly (but and in any event within one twenty-four (124) Business Dayhours) advise following its execution and delivery (and the Company shall not thereafter terminate, waive, amend, release or modify any material provisions of such Acceptable Confidentiality Agreement). Nothing contained in this Section 6.04 shall prohibit the Company or the Company Board from taking and Spectrum of any disclosing to the Company Stockholders a position with respect to an Acquisition Proposal received by Stockholder, with respect to the material terms Company pursuant to Rules 14d-9 and conditions of any such Acquisition Proposal (including any material changes thereto14e-2(a) and promulgated under the identity of the Person Exchange Act or from making any such Acquisition Proposalsimilar disclosure, if the Company Board has reasonably determined in good faith, (after consultation with its outside legal counsel), that the failure to do so would be inconsistent with its fiduciary duties to the Company Stockholders under applicable Law, provided that this sentence shall not permit the Company Board to make a Company Adverse Recommendation Change, except to the extent permitted by Section 6.04(b) or Section 6.04(c). Without limiting the foregoing, it is agreed that, if understood that any Representative violation of Stockholder or the restrictions contained in this Section 6.04(a) by any of the Company’s or its Subsidiaries takes any action that would constitute Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 3.02 6.04(a) by the Company.
(b) Neither the Company Board nor any committee thereof shall directly or indirectly (i) withhold, withdraw (or amend, qualify or modify in a manner adverse to Parent or Merger Sub), or publicly propose to withhold or withdraw (or amend, qualify or modify in a manner adverse to Parent or Merger Sub) the approval, recommendation or declaration of advisability by the Company Board or any such committee of the transactions contemplated by this Agreement, (ii) fail to include the Company Recommendation in the Joint Proxy Statement, (iii) propose publicly to recommend, adopt or approve any Acquisition Proposal with respect to the Company, (iv) fail to publicly reaffirm or re-publish the Company Recommendation within five (5) Business Days of being requested by Parent to do so (or if it were authorized earlier, at least two (2) Business Days prior to the Company Stockholders’ Meeting), (v) fail to send to the Company Stockholders, within ten (10) Business Days after the commencement of a tender or permitted exchange offer relating to the Company Shares (or if earlier, at least two (2) Business Days prior to the Company Stockholders’ Meeting), a statement disclosing that the Company recommends rejection of such tender or exchange offer and reaffirming the Company Recommendation (provided that the taking of no position or a neutral position by Stockholder, the Company Board in respect of the acceptance of any such action tender offer or exchange offer as of the end of such period shall constitute a breach failure to recommend against acceptance of such offer), or (vi) approve or recommend, publicly declare advisable or publicly propose to approve or recommend, or publicly propose to enter into any Contract (or any letter of intent, memorandum of understanding, agreement in principle or other similar contract or agreement) with respect to an Acquisition Proposal relating to the Company (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 3.02 by Stockholder, whether or not such 6.04) (any action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (described in any capacity) in this sentence being referred to as a writing enforceable by such party not to take any such action“Company Adverse Recommendation Change”). Notwithstanding the restrictions set forth above in this Section 3.02(a)foregoing, in the event that Stockholder receives, after the date of this Agreement and at any time prior to obtaining the ▇▇▇▇▇▇ Company Stockholder ApprovalApproval (but not after), and subject to the Company’s compliance at all times with the provisions of this Section 6.04 and Section 6.03, the Company Board may make a Company Adverse Recommendation Change or terminate this Agreement in order to enter into a definitive agreement with respect to a Superior Proposal pursuant to Section 6.04(a), in each case, if: (1) the Company receives a bona fide written Acquisition Proposal with respect to the Company after the date of this Agreement, that has not been withdrawn and did not result from any a breach of this Section 3.02 6.04(a), and that the board of directors of the Company Board determines in good faith (after consultation with outside counsel and a its financial advisor of nationally recognized reputationand outside legal counsel) to be, or to be reasonably expected to lead to, that such Acquisition Proposal constitutes a Superior Proposal; and (2) the Company Board determines in good faith (after consultation with its financial advisor and outside legal counsel) that failure to take such action in response to such Superior Proposal would be inconsistent with the directors’ fiduciary duties under applicable Law; provided, Stockholder may (1) engage however, that the Company Board shall not be entitled to take any such action in negotiations with, furnish any information response to a Superior Proposal with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of unless (x) the Company provides written notice to Parent at least four (4) Business Days in advance of taking any such action, which notice shall advise Parent that the Company Board has received a Superior Proposal, specify the material terms and its Subsidiaries toconditions of such Superior Proposal, identify the Person or group (and their respective Representatives) of Persons making such Acquisition ProposalSuperior Proposal and include copies of all documents pertaining to such Superior Proposal as specified in Section 6.04(g); provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company negotiates in good faith with Parent (to the extent not previously provided or made availableParent wishes to negotiate) substantially concurrently with it being provided or made available during such four (4) Business Day period to make such Third Party.
(b) Notwithstanding anything herein revisions to the contraryterms of this Agreement as would cause such Acquisition Proposal to cease to be a Superior Proposal; and (z) at the end of such four (4) Business Day period the Company Board determines in good faith (after consultation with the Company’s outside legal counsel and financial advisor and taking into account any alternative transaction proposed in writing by Parent, Section 3.02(a) shall not prohibit or limit Stockholder from taking all financial, legal, regulatory and other terms and conditions of any action (or inactionsuch alternative transaction proposal and expected timing of consummation and the relative risks of non-consummation of the alternative transaction proposal and the Superior Proposal) that would not such Superior Proposal continues to constitute a breach by Superior Proposal and that the Company, if taken by the Company, failure to make a Company Adverse Recommendation Change or terminate this Agreement in order to enter into a definitive agreement with respect to a Superior Proposal pursuant to Section 5.3 6.04(a), in response to such Superior Proposal would be inconsistent with the directors’ fiduciary duties under applicable Law. Any amendment to the financial terms and any other material amendment to any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of this Section 6.04(b), and will require a new notice pursuant to clause (x) hereof, except that references in this Section 6.04(b) to “four (4) Business Days” shall be deemed to be references to “two (2) Business Days” and such two (2) Business Day period shall expire at 11:59 p.m. (New York City time) on the Merger Agreementsecond Business Day immediately following the day on which such new notice is delivered (it being understood and agreed that in no event shall any such additional two (2) Business Day period be deemed to shorten the initial four (4) Business Day period).
(c) Nothing set forth Notwithstanding the first sentence of Section 6.04(b), at any time prior to obtaining the Company Stockholder Approval (but not after), in connection with any Intervening Event with respect to the Company, the Company Board may make a Company Adverse Recommendation Change if, and only if, an Intervening Event has occurred, and prior to taking such action, the Company Board determines in good faith (after consultation with its financial adviser and outside legal counsel), that the failure to make such Company Adverse Recommendation Change would be inconsistent with the directors’ fiduciary duties under applicable Law; provided, however, that, the Company Board shall not be entitled to make any such Company Adverse Recommendation Change in response to an Intervening Event with respect to the Company unless (x) the Company provides written notice to Parent at least four (4) Business Days in advance of taking any such action, which notice shall advise Parent that an Intervening Event has occurred and include a reasonably detailed description of such Intervening Event; (y) the Company negotiates in good faith with Parent (to the extent Parent wishes to negotiate) during such four (4) Business Day period to make such revisions to the terms of this Agreement shall apply so that the failure to or limit take such action would no longer be inconsistent with the directors’ fiduciary duties under applicable Law; and (z) at the end of such four (4)Business Day period the Company Board determines in good faith (after consultation with the Company’s outside legal counsel and financial advisor and taking into account any way a change alternative transaction proposed in writing by Parent, all financial, legal, regulatory and other terms and conditions of control any such alternative transaction proposal and expected timing of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicableconsummation and the relative risks of non-consummation of the alternative transaction proposal) (whether by virtue of a merger, acquisition, consolidation or other similar transaction)that the failure to make such Company Adverse Recommendation Change in response to such Intervening Event would be inconsistent with the directors’ fiduciary duties under applicable Law.
(d) Stockholder Parent agrees that, without the prior written consent of Spectrumexcept as expressly contemplated hereby, neither it nor any of its Affiliates Subsidiaries shall, and Parent shall, and shall purchasecause its Subsidiaries to, use reasonable best efforts to cause its and their respective Representatives not to, directly or indirectly (i) initiate, seek or solicit, or knowingly encourage or facilitate (including by way of furnishing non-public information) or take any other action that is reasonably expected to promote, directly or indirectly, any shares inquiries or the making or submission of Saturn Common Stock any proposal or securities offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal with respect to Parent; (ii) participate or engage in discussions (except to notify a Person that makes an inquiry, offer or proposal related to an Acquisition Proposal with respect to Parent of Spectrum convertible the existence of the provisions of this Section 6.04 or to clarify whether any such inquiry, offer or proposal constitutes an Acquisition Proposal with respect to Parent) or negotiations with, or disclose any non-public information or data relating to Parent or any of its Subsidiaries or afford access to the properties, books or records of Parent or any of its Subsidiaries to, any Person or group of Persons (or any of their Affiliates or Representatives) that is seeking to make, has made or could be reasonably expected to make, or otherwise in connection with, an Acquisition Proposal with respect to Parent, (iii) enter into any Contract (or exchangeable any letter of intent, memorandum of understanding, agreement in principle or exercisable for shares other similar contract or agreement) with respect to an Acquisition Proposal with respect to Parent (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.04), (iv) take any action or exempt any third party from the restrictions on “business combinations” or any similar provision contained in any applicable Takeover Law or Parent’s Organizational Documents or grant a waiver under Section 203 of Saturn Common Stock.the DGCL, or (v) resolve, publicly propose or agree to do any of the foregoing. Parent shall, and shall cause its Subsidiaries and instruct its and their respective Representatives to, immediately upon the execution of this Agreement cause to be ter
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Quanterix Corp), Merger Agreement (Akoya Biosciences, Inc.), Merger Agreement (Akoya Biosciences, Inc.)
Non-Solicitation. (a) Stockholder Sellers agree that they shall not, shall cause each of its Subsidiaries not to, and shall not authorize or permit any of its Representatives toensure that Kos Investments, Kos Holdings and their respective agents and representatives shall not, (i) directly or indirectly, (i) initiate, solicit, initiate or knowingly encourage, induce encourage or facilitate (including by way of furnishing information) any inquiries or the making of any proposal or offer with respect to an Acquisition Proposal, (ii) directly or indirectly, engage in any negotiations or discussions concerning, or provide access to its properties, or furnish or provide access to its books and records or any confidential information or data to, any person relating to an Acquisition Proposal or (iii) otherwise cooperate in any way with, or assist or participate in, facilitate or encourage any effort or attempt by any other Person to do or seek any of the foregoing; provided, however, that Sellers may (x) provide access or furnish information with respect to the Company and its Subsidiaries to any Person making an Acquisition Proposal (and its representatives) if at such time the Company is permitted to do so pursuant to a confidentiality agreement in accordance with Section 6.4 of the Merger Agreement and (y) engage in discussions or negotiations with the Person making an Acquisition Proposal (and its representatives) regarding such Acquisition Proposal if at such time the Company is permitted to engage in, and is actually engaged in, discussions or negotiations with such Person regarding such Acquisition Proposal. Sellers will, and will cause Kos Investments, Kos Holdings and their respective agents and representatives to, immediately cease and cause to be terminated any existing activities, discussions or negotiations with any persons conducted heretofore with respect to any Acquisition Proposal. Sellers shall also promptly (within 24 hours) notify Acquiror of the receipt by any Seller, Kos Investments, Kos Holdings or any of their respective agents or representatives of any Acquisition Proposal or any inquiry, proposal or offer that may is reasonably be expected likely to lead to an Acquisition ProposalProposal after the date hereof, (ii) furnish any nonpublic information regarding which notice shall include the Company identity of the person making such Acquisition Proposal or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any other inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions thereof, and will keep Acquiror promptly and reasonably apprised of any such Acquisition Proposal (including any related material changes developments, discussions and negotiations related thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 3 contracts
Sources: Stock Purchase Agreement (Jaharis Mary), Stock Purchase Agreement (Kos Pharmaceuticals Inc), Stock Purchase Agreement (Abbott Laboratories)
Non-Solicitation. (a) From and after the date of this Agreement until the termination hereof and except as permitted by the following provisions, each Principal Stockholder agrees that such Principal Stockholder shall not, and such Principal Stockholder shall use its reasonable best efforts to cause each of its Subsidiaries not torespective officers, directors, employees, financial advisors, attorneys, accountants, representatives and shall not authorize or permit agents (other than any of its Representatives to, directly or indirectly, the foregoing who serve as directors of the Company) not to (i) solicit, initiate initiate, knowingly encourage or knowingly encouragefacilitate the making of an Acquisition Proposal, induce (ii) enter into any agreement, arrangement or facilitate understanding with respect to any Acquisition Proposal Proposal, (iii) other than informing Persons of the existence of the provisions contained in this Section 6, participate in any discussions or negotiations regarding, or furnish or disclose to any Person (other than a party to the Merger Agreement) any non-public information in connection with any inquiries or the making of any proposal that constitutes, or is reasonably likely to lead to, any Acquisition Proposal, or (iv) approve, recommend, agree to or accept, or propose publicly to approve, recommend, agree to or accept, any Acquisition Proposal. From and after the date of this Agreement, each Principal Stockholder shall promptly (but in any event within two Business Days) advise Parent of the receipt of any inquiries, requests, proposals or offers relating to an Acquisition Proposal, or any inquiry, proposal request for nonpublic information relating to the Company or offer any Company Subsidiary that may would reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 3 contracts
Sources: Stockholders Voting Agreement (Fremont Partners Lp), Stockholders Voting Agreement (Square D Co), Stockholders Voting Agreement (Juno Lighting Inc)
Non-Solicitation. (a) Stockholder shall notDuring the term of this Agreement, shall cause each of its Subsidiaries not toCompany shall, and shall cause its Representatives:
(i) not authorize or permit any of its Representatives to, directly or indirectly, (ia) solicit, initiate or knowingly encourage, induce or facilitate take any Acquisition action to facilitate, any Takeover Proposal or any inquiry, proposal or offer that may inquiries reasonably be expected likely to lead to an Acquisition result in the making of any Takeover Proposal, or (iib) enter into, continue or otherwise participate in any discussions or negotiations with a third party regarding, or furnish to any nonpublic information regarding the Company third party any information, or afford access take any other action to the Company’s business, properties, assets, books or records facilitate any inquiries with respect to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected Takeover Proposal;
(ii) to make, or is otherwise seeking immediately cease and cause to make, or has made, an Acquisition Proposal, or (iii) participate in any be terminated all discussions or negotiations with any Third Party person conducted heretofore with respect to any proposal that is reasonably expected to make, constitutes or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may would reasonably be expected to lead to a Superior Proposal (it being understood that any Takeover Proposal, and cause all materials and written information communicated by the Company or its advisors and agents to such communications with any such Third Party shall person to be limited returned to the clarification Company or destroyed;
(iii) to immediately notify Offeror of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed receipt by the provisions Company and/or its Representatives, from the date of this Section 3.02. Stockholder shall promptly (but in execution hereof, of each and any event within one (1) Business Day) advise the Company and Spectrum Takeover Proposal or of any Acquisition contact related to a potential Takeover Proposal received by Stockholder, including the material terms full details thereof (and conditions of any such Acquisition Proposal (including any material changes theretosubsequent amendment thereof) and the identity of the Person persons involved, promptly and in any event within two Business Days of such receipt or contact; provided that the Company shall have the right to notify the person making the Takeover Proposal of the provisions of Sections 3.4(i) and (ii) above;
(iv) to keep Offeror informed of the status of any such Acquisition Takeover Proposal or contact, and to promptly advise Offeror of any amendment to a Takeover Proposal. Without limiting the foregoing; and
(v) not to accept, it is agreed thatapprove, if recommend or enter into any Representative agreement, in respect of Stockholder or a Takeover Proposal (and shall not make nor allow any of public communication about such Takeover Proposal);
(a) Company and its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action Representatives shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receivesright to, after filing of such Competing Offer with the date of this Agreement AMF, negotiate with and prior provide information to obtaining the ▇▇▇▇▇▇ Stockholder Approvalperson having filed the Competing Offer (provided that all information which is provided to the third party shall simultaneously be provided to Offeror); and (b) during the Response Period, a bona fide written Acquisition Proposal that did Offeror shall have the right, but not result from any breach of this Section 3.02 and that the board of directors obligation, to offer to amend the terms of the Offer and in such case Company determines shall, and shall cause its advisors to, negotiate in good faith (after consultation with outside counsel Offeror to make such adjustments to the terms and a financial advisor conditions of nationally recognized reputation) the Offer as would enable Company to berecommend and proceed with the Offer as amended, or to be reasonably expected to lead to, rather than the Competing Offer; if AMF determines that the Competing Offer is not a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to Board will promptly reaffirm that the business, properties, assets, books or records Offer is in the best interests of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, its employees and its shareholders by confirming its Board Recommendation; but if taken AMF determines that the Competing Offer is a Superior Proposal, Company may approve and recommend that holders of Company Shares accept the Superior Proposal, in which case, this Agreement shall terminate pursuant to Section 4.1, unless Offeror amends the terms of the Offer within appropriate regulatory timeline and that its revised Offer is determined by the AMF to be superior to the Superior Proposal (the “Revised Offer”), in which case the Company Board shall promptly reaffirm that the Offer, as revised, is in the best interests of the Company, pursuant to Section 5.3 its employees and its shareholders and shall recommend that holders of Company Shares accept the Revised Offer instead of the Merger AgreementSuperior Proposal.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 2 contracts
Sources: Tender Offer Agreement, Tender Offer Agreement (PROS Holdings, Inc.)
Non-Solicitation. (a) Stockholder From and after the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article VI, TeleCorp shall not, nor shall cause each TeleCorp permit any of its their Subsidiaries not to, and nor shall not TeleCorp authorize or permit any of its Representatives officers, directors or employees to, directly and shall use its reasonable best efforts to cause any investment banker, financial advisor, attorney, accountant, or indirectly, other representatives retained by them or any of their respective Subsidiaries not to (i) solicit, initiate or knowingly encourageencourage (including by way of furnishing information) any proposals that constitute, induce or facilitate any Acquisition Proposal or any inquiry, proposal or offer that may could reasonably be expected to lead to result in, a proposal or offer for an Acquisition Proposal, Proposal or (ii) furnish engage in negotiations or discussions concerning, or provide any nonpublic non-public information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder TeleCorp or any of its Subsidiaries takes to any action person or entity relating to, any Acquisition Proposal; provided, however, that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above nothing contained in this Section 3.02(a)Agreement shall prevent TeleCorp or its Board of Directors from, in the event that Stockholder receives, after the date of this Agreement and (A) prior to obtaining receipt of the ▇▇▇▇▇▇ Required Stockholder Approval, a furnishing non-public information to, or entering into discussions with, any person or entity in connection with an unsolicited bona fide written Acquisition Proposal by such person or entity if and only to the extent that did (1) the Company is not result from any then in breach of its obligations under this Section 3.02 and that 4.5(a), (2) the board Board of directors Directors of the Company determines TeleCorp believes in good faith (after consultation with its financial advisors) that such Acquisition Proposal constitutes or may reasonably be expected to result in a Superior Proposal and the Board of Directors of TeleCorp determines in good faith after consultation with its outside legal counsel that failure to take such action may constitute a breach of the Board of Directors' fiduciary duties to its stockholders under applicable law and a financial advisor of nationally recognized reputation(3) prior to befurnishing such nonpublic information to, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in entering into discussions or negotiations with, furnish such Person or entity, such Board of Directors receives from such Person or entity an executed confidentiality agreement with terms no less restrictive than those contained in the Confidentiality Agreement or (B) complying with Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act with regard to an Acquisition Proposal.
(b) Upon receiving an Acquisition Proposal, TeleCorp will promptly notify AWS (which notice shall be provided orally and in writing and shall identify the Person making the Acquisition Proposal), after receipt of any Acquisition Proposal or any amendment or change in any previously received Acquisition Proposal, or any request for nonpublic information with respect relating to the Company and its Subsidiaries to, and afford TeleCorp or any Subsidiary of TeleCorp or for access to the business, properties, assets, books or records of the Company TeleCorp or any Subsidiary of TeleCorp by any Person that has made, or to TeleCorp's knowledge may be considering making, an Acquisition Proposal. TeleCorp shall, and shall cause its Subsidiaries to, the Person or group (immediately cease and their respective Representatives) making such Acquisition Proposal; providedcause to be terminated, and use best efforts to cause its officers, directors, employees, investment bankers, consultants, attorneys, accountants, agents and other representatives to, immediately cease and cause to be terminated, all discussions and negotiations, if any, that have taken place prior to furnishing the date hereof with any Persons with respect to any Acquisition Proposal and shall request the return or destruction of all confidential information provided to any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger AgreementPerson.
(c) Nothing set forth in TeleCorp (i) agrees not to release any Person from, or waive any provision of, or fail to enforce, any standstill agreement or similar agreement to which it is a party related to, or which could affect, an Acquisition Proposal and (ii) acknowledges that the provisions of clause (i) are an important and integral part of this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction)Agreement.
(d) Stockholder agrees thatFor purposes of this Agreement, without the prior written consent "Acquisition Proposal" means any offer or proposal for, or any indication of Spectruminterest in, neither it nor any (i) direct or indirect acquisition or purchase of a business or asset of TeleCorp or any of its Affiliates shall purchaseSubsidiaries that constitutes 15% or more of the net revenues, directly net income or indirectlyassets of TeleCorp and its Subsidiaries, taken as a whole; (ii) direct or indirect acquisition or purchase of 15% or more of any shares class of Saturn Common Stock equity securities, or securities 15% of Spectrum convertible the voting power, of TeleCorp or any of its Subsidiaries whose business constitutes 15% or more of the net revenues, net income or assets of TeleCorp and its Subsidiaries, taken as a whole; (iii) tender offer or exchange offer that, if consummated, would result in any Person beneficially owning 15% or more of any class of equity securities, or 15% of the voting power, of TeleCorp or any of its Subsidiaries whose business constitutes 15% or more of the net revenues, net income or assets of TeleCorp and its Subsidiaries, taken as a whole; or (iv) merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving TeleCorp or any of its Subsidiaries whose business constitutes 15% or more of the net revenue, net income or assets of TeleCorp and its Subsidiaries, taken as a whole, other than the transactions contemplated by this Agreement. For purposes of this Agreement, "Superior Proposal" means any bona fide written Acquisition Proposal obtained not in breach of this Section 4.5 for or in respect of all of the outstanding TeleCorp Capital Stock, on terms that the Board of Directors of TeleCorp determines in its good faith judgment (after consultation with its financial advisors and taking into or exchangeable or exercisable account all the terms and conditions of the Acquisition Proposal and this Agreement deemed relevant by such Board of Directors, including any break-up fees, expense reimbursement provisions, conditions to and expected timing and risks of consummation, and the ability of the party making such proposal to obtain financing for shares such Acquisition Proposal and taking into account all other legal, financial, regulatory and all other aspects of Saturn Common Stocksuch proposal) are more favorable to its stockholders than the Merger.
Appears in 2 contracts
Sources: Merger Agreement (Telecorp PCS Inc /Va/), Merger Agreement (At&t Wireless Services Inc)
Non-Solicitation. (a1) Stockholder Except as expressly provided in this Article 5, the Company shall not, shall cause each of its Subsidiaries not to, and shall not authorize or permit any of its Representatives to, directly or indirectly, through any director, Company Employee, representative (iincluding any financial or other adviser) or agent of the Company or of any of its Subsidiaries (collectively “Representatives”):
(a) solicit, initiate initiate, knowingly encourage or otherwise knowingly encouragefacilitate (including by way of furnishing or providing copies of, induce access to, or facilitate disclosure of, any Acquisition Proposal confidential information, properties, facilities, books or records of the Company or any Subsidiary) any inquiry, proposal or offer that constitutes or may reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has madeconstitute, an Acquisition Proposal, ;
(b) enter into or (iii) otherwise engage or participate in any negotiations or meaningful discussions or negotiations with any Third Party that is reasonably expected to make, Person (other than with the Purchaser or has made, an Acquisition Proposal, any Person acting jointly or in concert with the Purchaser) regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal that constitutes or offer may reasonably be expected to lead to constitute, an Acquisition Proposal, provided that the Company may (i) advise any Person of the restrictions of this Agreement, (ii) contact the Person for the purposes of seeking clarification of the terms of such Acquisition Proposal, and (iii) advise any Person making an Acquisition Proposal that the Board has determined that such Acquisition Proposal does not constitute a Superior Proposal, in each case, if, in so doing, no other information that is prohibited from being communicated under this Agreement is communicated to such Person;
(c) make a Change in Recommendation;
(d) accept, approve, endorse or recommend, or publicly propose to accept, approve, endorse or recommend any Acquisition Proposal, or take no position or remain neutral with respect to any publicly announced Acquisition Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry publicly taking no position or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions a neutral position with respect to an Acquisition Proposal for a period of no more than five (5) Business Days following the formal announcement of such Acquisition Proposal will not be considered to be in violation of this Article 5 provided the Board has rejected such Acquisition Proposal or affirmed the Board Recommendation, as the case may be, by or before the end of such five (5) Business Day period); or
(e) approve, recommend or enter into (other than a confidentiality agreement permitted by and in accordance with Section 5.3) or publicly propose to enter into any agreement in respect of an Acquisition Proposal.
(2) Except as expressly provided in this Article 5, the Company shall, and shall cause its Subsidiaries and its Representatives to, immediately cease and terminate, and cause to be terminated, any solicitation, encouragement, discussion or negotiations with any Person (other than with the Purchaser) with respect to any inquiry, proposal or offer that would reasonably be expected to constitute an Acquisition Proposal, and in connection therewith, the Company will:
(a) discontinue access to and disclosure of all information, including any data room and any confidential information, properties, facilities, books and records of the Company or of any of its Subsidiaries; and
(yb) such Person’s view request, and exercise all rights it has to require the return or position with respect thereto) and (B) inform destruction of all copies of any confidential information regarding the Company or any Subsidiary provided to any Person that makes an Acquisition Proposal of other than the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but Purchaser in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any connection with such potential Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after before the date of this Agreement), including using its commercially reasonable efforts to ensure that such requests are fully complied with in accordance with the terms of such rights or entitlements.
(3) The Company covenants and agrees not to release any Person from, or waive such Person’s obligations respecting the Company, under any confidentiality, standstill or similar agreement or restriction to which the Company is a party (it being acknowledged by the Purchaser that the automatic termination or release of any restrictions of any such agreements as a result of entering into and announcing this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, shall not be a bona fide written Acquisition Proposal that did not result from any breach violation of this Section 3.02 and 5.1(3)), except to allow such Person to make an Acquisition Proposal confidentially to the Board that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to beconstitutes, or to could reasonably be reasonably expected to constitute or lead to, a Superior Proposal, Stockholder may (1) engage in negotiations provided that the remaining provisions of this Article 5 are complied with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (undertakes to the extent not previously provided seek to enforce, or made available) substantially concurrently with cause it being provided Subsidiaries to seek to enforce, all confidentiality, standstill, or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit similar agreements or limit Stockholder from taking any action (restrictions that it or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly Subsidiaries have entered into prior to the date hereof or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible enter into or exchangeable or exercisable for shares of Saturn Common Stockafter the date hereof.
Appears in 2 contracts
Sources: Arrangement Agreement (SNDL Inc.), Arrangement Agreement (Valens Company, Inc.)
Non-Solicitation. (a) Stockholder Cubs agrees that, except as expressly contemplated by this Agreement, neither it nor any of the Cubs Subsidiaries shall, and Cubs shall notuse its reasonable best efforts, and shall cause each of its the Cubs Subsidiaries not to use their respective reasonable best efforts to, and shall cause their respective Representatives not authorize or permit any of its Representatives to, directly or indirectly, to (i) directly or indirectly initiate or solicit, initiate or knowingly encourage, induce encourage or knowingly facilitate any Acquisition Proposal (including by way of furnishing non-public information relating to Cubs or any inquiryof the Cubs Subsidiaries) any inquiries or the making or submission of any proposal that constitutes, proposal or offer that may could reasonably be expected to lead to to, an Acquisition ProposalProposal with respect to Cubs, (ii) furnish other than clarifying terms of the Acquisition Proposal in accordance with the penultimate sentence of this Section 5.4(a), participate or engage in discussions or negotiations with, or disclose any nonpublic non-public information regarding or data relating to Cubs or any of the Company Cubs Subsidiaries or afford access to the Company’s business, properties, assets, books or records to, of Cubs or otherwise knowingly cooperate in any way with, of the Cubs Subsidiaries to any Third Party Person that is reasonably expected to make, or is otherwise seeking to make, or has made, made an Acquisition ProposalProposal with respect to Cubs or to any Person in contemplation of making an Acquisition Proposal with respect to Cubs, or (iii) participate accept an Acquisition Proposal with respect to Cubs or enter into any agreement, including any letter of intent, memorandum of understanding, agreement in any discussions principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or negotiations with any Third Party other similar agreement, arrangement or understanding, (A) constituting or related to, or that is intended to or could reasonably be expected to makelead to, any Acquisition Proposal with respect to Cubs (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 5.4) or (B) requiring, intending to cause, or has madewhich could reasonably be expected to cause Cubs to abandon, an terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement (each, a “Cubs Acquisition ProposalAgreement”). Any violation of the foregoing restrictions by any of the Cubs Subsidiaries or by any Representatives of Cubs or any of the Cubs Subsidiaries, regarding an Acquisition Proposal; provided thatwhether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Cubs or any of the Cubs Subsidiaries or otherwise, notwithstanding shall be deemed to be a breach of this Agreement by Cubs. Notwithstanding anything to the contrary in this Agreement, prior to obtaining the Cubs Stockholder Approval, Cubs and the Cubs Board may take any actions described in clause (ii) in the first sentence of this Section 5.4(a) with respect to a third party if (w) after the date of this Agreement, C▇▇▇ receives a written Acquisition Proposal with respect to Cubs from such Person may third party (Aand such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Cubs or any of the Cubs Subsidiaries or any of their respective Representatives), (x) seek Cubs provides Dodgers the notice required by Section 5.4(g) with respect to clarify such Acquisition Proposal, (y) the terms Cubs Board determines in good faith (after consultation with Cubs’ financial advisors and conditions of any inquiry, outside legal counsel) that such proposal constitutes or offer to determine whether such inquiry, proposal or offer may could reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiryCubs, proposal or offer or (y) such Person’s view or position with respect thereto) and (Bz) inform the Cubs Board determines in good faith (after consultation with Cubs’ outside legal counsel) that the failure to participate in such discussions or negotiations or to disclose such information or data to such third party would be inconsistent with its fiduciary duties; provided that Cubs shall not deliver any Person that makes information to such third party without first entering into an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any Acceptable Confidentiality Agreement with such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such actionthird party. Notwithstanding the restrictions limitations set forth above in this Section 3.02(a5.4(a) and subject to compliance with Cubs’ obligations contained in Section 5.4(g), in the event that Stockholder if Cubs receives, after following the date of this Agreement hereof and prior to obtaining the ▇▇▇▇▇▇ Stockholder ApprovalCubs Stockholders’ Meeting, a an unsolicited bona fide written Acquisition Proposal that did not result from any a material breach of this Section 3.02 5.4, Cubs and its Representatives may contact the Person or any of such Person’s Representatives who has made such Acquisition Proposal solely to clarify the terms of such Acquisition Proposal so that Cubs may inform itself about such Acquisition Proposal. Nothing contained in this Section 5.4 shall prohibit Cubs or the Cubs Board from taking and disclosing to the Cubs Stockholders a position with respect to an Acquisition Proposal with respect to Cubs pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law; provided that, the foregoing clause shall not be deemed to permit Cubs or the Cubs Board to effect a Cubs Adverse Recommendation Change except in accordance with Section 5.4(b) or Section 5.4(c).
(b) Neither (i) the Cubs Board nor any committee thereof shall directly or indirectly (A) withhold or withdraw (or amend, modify or qualify in a manner adverse to Dodgers or Merger Sub), or publicly propose or announce any intention to withhold or withdraw (or amend, modify or qualify in a manner adverse to Dodgers or Merger Sub), the Cubs Recommendation or (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Acquisition Proposal with respect to Cubs (any action described in this clause (i) being referred to as a “Cubs Adverse Recommendation Change”) nor (ii) shall Cubs or any of the Cubs Subsidiaries execute or enter into a Cubs Acquisition Agreement. Notwithstanding the foregoing, at any time prior to obtaining the Cubs Stockholder Approval, and subject to Cubs’ compliance in all material respects at all times with the provisions of this Section 5.4 and Section 5.3, in response to a Superior Proposal with respect to Cubs that was not initiated, solicited, knowingly encouraged or knowingly facilitated by Cubs or any of the Cubs Subsidiaries or any of their respective Representatives, the Cubs Board may make a Cubs Adverse Recommendation Change; provided, however, that Cubs shall not be entitled to exercise its right to make a Cubs Adverse Recommendation Change in response to a Superior Proposal with respect to Cubs (x) until five (5) Business Days after Cubs provides written notice to Dodgers (a “Cubs Notice”) advising Dodgers that the board Cubs Board or a committee thereof has received a Superior Proposal, specifying the material terms and conditions of directors such Superior Proposal, and identifying the Person or group making such Superior Proposal, (y) if during such five (5) Business Day period, Dodgers proposes any alternative transaction (including any modifications to the terms of this Agreement), unless the Company Cubs Board determines in good faith (after consultation with Cubs’ financial advisors and outside counsel legal counsel, and taking into account all financial, legal, and regulatory terms and conditions of such alternative transaction proposal, including any conditions to and expected timing of consummation, and any risks of non-consummation of such alternative transaction proposal) that such alternative transaction proposal is not at least as favorable to Cubs and its stockholders as the Superior Proposal (it being understood that any change in the financial or other material terms of a Superior Proposal shall require a new Cubs Notice and a financial advisor of nationally recognized reputationnew three (3) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1Business Day period under this Section 5.4(b)) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (yz) provides prior written notice unless the Cubs Board, after consultation with outside legal counsel, determines that the failure to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently make a Cubs Adverse Recommendation Change would be inconsistent with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreementits fiduciary duties.
(c) Nothing set forth Notwithstanding the first sentence of Section 5.4(b), at any time prior to obtaining the Cubs Stockholder Approval, and subject to Cubs’ compliance in all material respects at all times with the provisions of this Section 5.4 and Section 5.3, in response to a Cubs Intervening Event, the Cubs Board may make a Cubs Adverse Recommendation Change described in clause (A) of the definition thereof if the Cubs Board (i) determines in good faith, after consultation with Cubs’ outside legal counsel and any other advisor it chooses to consult, that the failure to make such Cubs Adverse Recommendation Change would be inconsistent with its fiduciary duties, (ii) determines in good faith that the reasons for making such Cubs Adverse Recommendation Change are independent of any Acquisition Proposal (whether pending, potential or otherwise) with respect to Cubs and (iii) provides written notice to Dodgers (a “Cubs Notice of Change”) advising Dodgers that the Cubs Board is contemplating making a Cubs Adverse Recommendation Change and specifying the material facts and information constituting the basis for such contemplated determination; provided, however, that (x) the Cubs Board may not make such a Cubs Adverse Recommendation Change until the third Business Day after receipt by Dodgers of the Cubs Notice of Change and (y) during such three (3) Business Day period, at the request of Dodgers, Cubs shall negotiate in good faith with respect to any changes or modifications to this Agreement shall apply which would allow the Cubs Board not to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction)make such Cubs Adverse Recommendation Change consistent with its fiduciary duties.
(d) Stockholder Dodgers agrees that, without the prior written consent of Spectrumexcept as expressly contemplated by this Agreement, neither it nor any of the Dodgers Subsidiaries shall, and Dodgers shall use its Affiliates reasonable best efforts, and shall purchasecause each of the Dodgers Subsidiaries to use their respective reasonable best efforts to, cause their respective Representatives not to (i) directly or indirectlyindirectly initiate or solicit, or knowingly encourage or knowingly facilitate (including by way of furnishing non-public information relating to Dodgers or any of the Dodgers Subsidiaries) any inquiries or the making or submission of any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal with respect to Dodgers, (ii) other than clarifying terms of the Acquisition Proposal in accordance with the penultimate sentence of this Section 5.4(d), participate or engage in discussions or negotiations with, or disclose any non-public information or data relating to Dodgers or any of the Dodgers Subsidiaries or afford access to the properties, books or records of Dodgers or any of the Dodgers Subsidiaries to any Person that has made an Acquisition Proposal with respect to Dodgers or to any Person in contemplation of making an Acquisition Proposal with respect to Dodgers, or (iii) accept an Acquisition Proposal with respect to Dodgers or enter into any agreement, including any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement, arrangement or understanding, (A) constituting or related to, or that is intended to or could reasonably be expected to lead to, any shares Acquisition Proposal with respect to Dodgers (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 5.4) or (B) requiring, intending to cause, or which could reasonably be expected to cause Dodgers to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement (each, a “Dodgers Acquisition Agreement”). Any violation of Saturn Common Stock the foregoing restrictions by any of the Dodgers Subsidiaries or securities by any Representatives of Spectrum convertible Dodgers or any of the Dodgers Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Dodgers or any of the Dodgers Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Dodgers. Notwithstanding anything to the contrary in this Agreement, prior to obtaining the Dodgers Stockholder Approval, Dodgers and the Dodgers Board may take any actions described in clause (ii) in the first sentence of this Section 5.4(d) with respect to a third party if (w) after the date of this Agreement, Dodgers receives a written Acquisition Proposal with respect to Dodgers from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Dodgers or any of the Dodgers Subsidiaries or any of their respective Representatives), (x) Dodgers provides Cubs the notice required by Section 5.4(g) with respect to such Acquisition Proposal, (y) the Dodgers Board determines in good faith (after consultation with Dodgers’ financial advisors and outside legal counsel) that such proposal constitutes or could reasonably be expected to lead to a Superior Proposal with respect to Dodgers, and (z) the Dodgers Board determines in good faith (after consultation with Dodgers’ outside legal counsel) that the failure to participate in such discussions or negotiations or to disclose such information or data to such third party would be inconsistent with its fiduciary duties; provided that Dodgers shall not deliver any information to such third party without first entering into an Acceptable Confidentiality Agreement with such third party. Notwithstanding the limitations set forth in this Section 5.4(d), and subject to compliance with Dodgers’ obligations contained in Section 5.4(g), if Dodgers receives, following the date hereof and prior to the Dodgers Stockholders’ Meeting, an unsolicited bona fide written Acquisition Proposal that did not result from a material breach of this Section 5.4, Dodgers and its Representatives may contact the Person or exchangeable any of such Person’s Representatives who has made such Acquisition Proposal solely to clarify the terms of such Acquisition Proposal so that Dodgers may inform itself about such Acquisition Proposal. Nothing contained in this Section 5.4 shall prohibit Dodgers or exercisable for shares the Dodgers Board from taking and disclosing to the Dodgers Stockholders a position with respect to an Acquisition Proposal with respect to Dodgers pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law; provided that, the foregoing clause shall not be deemed to permit Dodgers or the Dodgers Board to effect a Dodgers Adverse Recommendation Change except in accordance with Section 5.4(e) or Section 5.4(f).
(e) Neither (i) the Dodgers Board nor any committee thereof shall directly or indirectly (A) withhold or withdraw (or amend, modify or qualify in a manner adverse to Cubs), or publicly propose or announce any intention to withhold or withdraw (or amend, modify or qualify in a manner adverse to Cubs), the Dodgers Recommendation or the Dodgers Proposals or (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Acquisition Proposal with respect to Dodgers (any action described in this clause (i) being referred to as a “Dodgers Adverse Recommendation Change”) nor (ii) shall Dodgers or any of Saturn Common Stock.the Dodgers Subsidiaries execute or enter into, a Dodgers Acquisition Agreement. Notwithstanding the foregoing, at any time prior to obtaining the Dodgers Stockholder Approval, and subject to Dodgers’ compliance in all material respects at all times with the provisions of this Section 5.4 and Section 5.3, in response to a Superior Proposal with respect to Dodgers, that was not initiated, solicited, knowingly encouraged or knowingly facilitated by Dodgers or any of the Dodgers Subsidiaries or any of their respective Representatives, the Dodgers Board may make a Dodgers Adverse Recommendation Change; provided, however, that Dodgers shall not be entitled to exercise its right to make a Dodgers Adverse Recommendation Change in response to a Superior Proposal with respect to Dodgers (x) until five (5) Business Days after Dodgers provides written notice to Cubs (a “Dodgers Notice”) advising Cubs that the Dodgers Board or a committee thereof has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal, and identifying the Person or group making such Superior Proposal, (y) if during such five (5) Business Day period, Cubs proposes any alternative transaction (including any modifications to the terms of this Agreement), unless the Dodge
Appears in 2 contracts
Sources: Merger Agreement (Coterra Energy Inc.), Merger Agreement (Coterra Energy Inc.)
Non-Solicitation. (a) Stockholder During the Interim Period, other than in connection with the Transactions, GHV agrees that it shall not, shall cause each of its Subsidiaries not to, and shall not authorize or (to the extent within its control) permit any of its directors, officers, employees, agents or Representatives acting on its behalf (including investment bankers, attorneys and accountants), to, directly or indirectly, (i) initiate, solicit, initiate or knowingly encouragefacilitate the making of any offers or proposals related to, induce or facilitate any Acquisition Proposal or any inquiry, proposal or offer that may reasonably be expected to lead to an Acquisition ProposalAlternate GHV Combination, (ii) furnish any nonpublic information regarding the Company enter into, engage in or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in continue any discussions or negotiations with any Third Party that is reasonably expected respect to makean Alternate GHV Combination with, or provide any non-public information, data or access to employees to, any Person that has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any or informs it that such Person may (A) seek to clarify the terms and conditions of any inquiryis considering making, a proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to an Alternate GHV Combination, (iii) approve, endorse or recommend any Alternate GHV Combination, or (iv) enter into any agreement, letter of intent, memorandum of understanding, term sheet or other Contract relating to an Alternate GHV Combination. GHV shall promptly (and in no event later than twenty-four (24) hours after becoming aware of such inquiryproposal, proposal or offer or (yrequest for information) such Person’s view notify Ardagh of any proposals, offers or position requests for information made with respect thereto) to an Alternate GHV Combination following GHV’s awareness thereof and (B) inform provide Ardagh a copy of such proposal, offer or request for information, if in writing. GHV and its officers and directors shall, and shall instruct and cause its Representatives acting on its behalf to, immediately cease and terminate all discussions and negotiations with any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholdermay be ongoing with respect to a possible Alternate GHV Combination, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information other than with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third PartyTransactions.
(b) Notwithstanding anything herein During the Interim Period, other than in connection with the Transactions, Ardagh and AMPSA each agree that it shall not, will direct their respective Affiliates not to, and shall not authorize or (to the contrary, Section 3.02(aextent within its control) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor permit any of its Affiliates shall purchasedirectors, officers, employees, agents or Representatives acting on its behalf (including investment bankers, attorneys and accountants), to, directly or indirectly, (i) initiate, solicit, or knowingly facilitate the making of any shares offers or proposals related to, an Alternate Ardagh Combination, (ii) enter into, engage in or continue any discussions or negotiations with respect to an Alternate Ardagh Combination with, or provide any non-public information, data or access to employees to, any Person that has made, or informs it that such Person is considering making, a proposal with respect to an Alternate Ardagh Combination, (iii) approve, endorse or recommend any Alternate Ardagh Combination, or (iv) enter into any agreement, letter of Saturn Common Stock intent, memorandum of understanding, term sheet or securities other Contract relating to an Alternate Ardagh Combination. Ardagh or AMPSA, as applicable, shall promptly (and in no event later than twenty-four (24) hours after becoming aware of Spectrum convertible into such proposal, offer or exchangeable request for information) notify GHV of any proposals, offers or exercisable requests for shares information made with respect to an Alternate Ardagh Combination following the earlier of Saturn Common StockArdagh’s or AMPSA’s awareness thereof and provide GHV a copy of such proposal, offer or request for information, if in writing. Ardagh, AMPSA and their respective officers and directors shall, and shall instruct and cause their respective Representatives acting on their behalf to, immediately cease and terminate all discussions and negotiations with any Person that may be ongoing with respect to a possible Alternate Ardagh Combination, other than with respect to the Transactions.
Appears in 2 contracts
Sources: Business Combination Agreement (Ardagh Metal Packaging S.A.), Business Combination Agreement (Gores Holdings v Inc.)
Non-Solicitation. (a) Stockholder The Corporation shall not, shall cause each of its Subsidiaries not to, and shall not authorize or permit any of its Representatives to, directly or indirectly, through any officer, director, employee, representative or agent of the Corporation or any of its Subsidiaries,
(i) solicit, initiate or knowingly encourageencourage (including by way of furnishing information or entering into any form of agreement, induce arrangement or facilitate understanding) the initiation or continuation of any inquiries, discussions, negotiations, proposals or offers from any Person or group of Persons (other than Acquiror) in respect of any matter or thing inconsistent with the successful completion of the Offer, including, without limitation, any Acquisition Proposal or any inquiry, proposal or offer that may reasonably be expected to lead to an Acquisition Proposal, ;
(ii) furnish provide any nonpublic non-public information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with relating to any Third Party that is reasonably expected to makesuch matter or thing with, or has madeotherwise cooperate with or assist or participate in any effort to take such action by, an Acquisition Proposalany Person or group of Persons;
(iii) withdraw, regarding modify, qualify or change any of its recommendations or determinations referred to in section 2.2 in a manner adverse to Acquiror or the Board of Directors or any committee thereof resolve to do so; or
(iv) accept, recommend, approve or enter into any agreement to implement an Acquisition Proposal; provided thatprovided, however, that notwithstanding anything any other provision hereof, the Corporation and the officers, directors, advisors and other representatives of the Corporation may:
(v) enter into, or participate in, any discussions or negotiations with a third party who seeks to initiate (without solicitation or encouragement) such discussions or negotiations and, may furnish to such third party information concerning the Corporation and its business, properties and assets, in each case if, and only to the contrary in this Agreement, any such Person may extent that:
(A) seek the third party has first made an Acquisition Proposal which the Board of Directors has determined, in good faith and acting reasonably, if pursued would be reasonably likely to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to constitute a Superior Proposal and after receiving the advice of outside counsel has determined that the failure to take such action would be reasonably likely to constitute a breach by the members of the Board of Directors of their fiduciary duties to Shareholders under applicable law; and
(it being understood that B) prior to furnishing such information to or entering into or participating in any such communications discussions or negotiations with such third party, the Corporation provides prompt notice to Acquiror to the effect that it is furnishing information to or entering into or participating in discussions or negotiations with such third party and if not previously provided to Acquiror, copies of all information provided to such third party concurrently with the provision of such information to such third party; provided that this (v) shall cease to apply after the expiry of four Business Days from the time such third party made the Acquisition Proposal referred to in (A) above, unless within such four Business Day period the Board of Directors determines that the Acquisition Proposal is a Superior Proposal and after receiving the advice of outside counsel has determined that the failure to take such action would be reasonably likely to constitute a breach by the members of the Board of Directors of their fiduciary duties to Shareholders under applicable law;
(vi) subject to paragraphs (v) and (vii) of this section 3.2, comply with Securities Laws relating to the provision of directors’ circulars and making appropriate disclosure with respect thereto to Shareholders; and
(vii) withdraw, modify, qualify or change any of its recommendations or determinations in section 2.2 in a manner adverse to Acquiror or resolve to do so or accept, recommend, approve or implement any Superior Proposal if the Corporation has complied with sections 3.2(c) and (d) in respect of the Superior Proposal and prior to such acceptance, recommendation, approval or implementation:
(A) after consultation with its financial advisors, and after receiving advice of outside counsel the Board of Directors concludes in good faith such action is necessary for the Board of Directors to comply with its fiduciary duties under applicable law;
(B) in arriving at such conclusion, the Board of Directors gives consideration to any amendment proposed by Acquiror in writing in compliance with section 3.2(d); and
(C) the Corporation concurrently pays the fee provided in section 3.6 to Acquiror.
(b) The Corporation shall, and shall direct and use reasonable efforts to cause its officers, directors, employees, representatives and agents to, immediately cease and cause to be terminated any existing discussions or negotiations with any such Third Party shall be limited to the clarification parties (other than Acquiror or an affiliate of the original inquiry or proposal made by such Third Party and shall not include (xAcquiror) any negotiations or similar discussions with respect to such inquiryany potential Acquisition Proposal. The Corporation shall immediately close any and all data rooms which may have been opened. The Corporation agrees not to waive, proposal in whole or offer in part, or (y) such Person’s view release, in whole or position in part, any third party from, or consent to any action pursuant to, any confidentiality or standstill agreement with respect theretoto the Corporation or any of its Subsidiaries to which such third party is a party except in respect of a Superior Proposal in accordance with section 3.2(d). The Corporation shall immediately request the return or destruction of all information provided to any third parties who have entered into a confidentiality agreement with the Corporation relating to a potential Acquisition Proposal, shall use all reasonable efforts to ensure that such requests are honoured and shall immediately advise Acquiror orally and in writing of any responses or action (actual, anticipated, contemplated or threatened) and (B) inform by any Person that makes an Acquisition Proposal recipient of such request which could hinder, prevent, delay or otherwise adversely affect the consummation of the restrictions imposed by the provisions transactions contemplated hereby.
(c) The Corporation has notified Acquiror of this Section 3.02. Stockholder any existing Acquisition Proposals and shall notify Acquiror promptly (but and in any event within one 24 hours) of any future Acquisition Proposal (1) Business Day) advise the Company and Spectrum including, without limitation, any amended, supplemented, replaced or renewed Acquisition Proposal previously made and, incrementally, of any Acquisition Proposal received (whether or not previously notified) in respect of which the Board of Directors has made the determinations referred to in section 3.2(a)(v)(A) above) or any request for non-public information relating to the Corporation or any of its Subsidiaries or for access to the properties, books or records of the Corporation or any Subsidiary by Stockholderany Person. Such notice to Acquiror shall be made, from time to time, orally and in writing, and shall indicate such details of the material terms and conditions of any proposal, inquiry or contact known to such Acquisition Proposal (including any material changes thereto) and person as Acquiror may reasonably request including, without limitation, the identity of the Person making such proposal, inquiry or contact and shall include a copy of any such written form of Acquisition Proposal. Without limiting , all of which information shall be subject to the foregoing, it is agreed that, if any Representative provisions of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 the Confidentiality Agreement as if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (Information as referred to in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction)agreement.
(d) Stockholder agrees thatIf the Board of Directors determines that an Acquisition Proposal constitutes a Superior Proposal, the Corporation shall give immediate notice of such determination and shall give Acquiror not less than four Business Days advance notice of any action to be taken by the Board of Directors to withdraw, modify, qualify or change any recommendation regarding the Offer or to enter into any agreement to implement the Superior Proposal and the Board of Directors shall not withdraw, modify, qualify or change any recommendation with respect to the Offer, as so amended, and neither the Corporation nor the Board of Directors shall take any action to approve or implement the Superior Proposal, including, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectlylimitation, any shares release of Saturn Common Stock the party making the Superior Proposal from any standstill or securities confidentiality obligation, any further consideration or negotiation of Spectrum convertible the Superior Proposal or entry into of any agreement regarding the Superior Proposal before the expiry of such four Business Day period.
(e) If the Board of Directors receives a request for non-public information from a party who has made or exchangeable is considering making an Acquisition Proposal and the Board of Directors determines that such proposal if pursued would be reasonably likely to constitute a Superior Proposal pursuant to section 3.2(a), then, and only in such case, the Corporation may, subject to the execution of a confidentiality agreement no less favourable to the Corporation than that then in effect between the Corporation and Acquiror, provide such party with access to information regarding the Corporation provided that the Corporation complies with its obligations pursuant to section 3.2(c), sends a copy of any such confidentiality agreement to Acquiror immediately upon its execution and provides copies to Acquiror of any information provided to such party concurrently with its provision to such party.
(f) The Corporation shall ensure that the officers, directors and employees of the Corporation and its Subsidiaries and any investment bankers or exercisable other advisors and representatives retained by the Corporation are aware of the provisions of this section 3.2, and the Corporation shall be responsible for shares any breach of Saturn Common Stockthis section 3.2 by such investment bankers, advisors or other representatives.
(g) Each successive amendment to any Acquisition Proposal that results in an increase in, or modification of, the consideration (or value of such consideration) to be received by the Shareholders shall constitute a new Acquisition Proposal for the purposes of this section 3.2 and Acquiror shall be afforded a new response period in respect of each such Acquisition Proposal.
Appears in 2 contracts
Sources: Subscription and Support Agreement (Hexagon Canada Acquisition Inc.), Subscription and Support Agreement (Hexagon Ab)
Non-Solicitation. (a) Stockholder On and after the date hereof until the date upon which this Agreement is terminated, and except as otherwise expressly provided in this Section 7.1, Target shall not, shall cause each of its Subsidiaries not to, and shall not authorize or permit any of its Representatives to, directly or indirectly, or through any of its Representatives, and shall cause its subsidiaries and their Representatives not to:
(i) solicit, initiate or knowingly encourageinitiate, induce encourage or facilitate (including by way of furnishing information or entering into any Acquisition Proposal form of agreement, arrangement or understanding) the initiation of any inquiry, proposal inquiries or offer that may reasonably be expected to lead to proposals whatsoever which would constitute an Acquisition Proposal, ;
(ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to makePerson (other than Acquiror, any of its affiliates or has made, an Acquisition Proposal, its or their Representatives) regarding an Acquisition Proposal;
(iii) approve, accept, endorse or recommend, or propose publicly to accept, approve, endorse or recommend, any Acquisition Proposal;
(iv) accept or enter into or publicly propose to accept or enter into, any agreement, understanding or arrangement or other contract in respect of an Acquisition Proposal; or
(v) make a Change in Recommendation, unless (A) it does not relate to an Acquisition Proposal and (B) in the opinion of the Target Board, acting in good faith and after receiving advice from its outside financial advisors and outside legal counsel, the Target Board is required to make a Change in Recommendation in order to comply with the fiduciary duties of such directors under applicable Law.
(b) Except as otherwise provided thatin this Section 7.1, notwithstanding anything Target shall, and shall cause its subsidiaries and its and their Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any Persons (other than Acquiror and its Representatives) conducted heretofore by Target, its subsidiaries or its or their Representatives with respect to any potential Acquisition Proposal and, in connection therewith, Target will discontinue access to any of its confidential information (and not establish or allow access to any of its confidential information, or any data room, virtual or otherwise) and shall as soon as possible request, to the contrary in this Agreement, extent that it is entitled to do so (and exercise all rights it has to require) the return or destruction of all confidential information (including all material including or incorporating or otherwise reflecting any material confidential information) regarding Target and its subsidiaries previously provided to any such Person may (A) seek to clarify the terms and conditions or any other Person. Target agrees that, except as permitted by Section 7.1(c), neither it nor any of its subsidiaries shall terminate, waive, amend or modify any provision of any inquiryexisting confidentiality agreement relating to a potential Acquisition Proposal or any standstill agreement to which it or any of its subsidiaries is a party (it being acknowledged and agreed that the automatic termination of any standstill provisions of any such agreement as the result of the entering into and announcement of this Agreement by Target, proposal pursuant to the express terms of any such agreement, shall not be a violation of this Section 7.1(b)) and Target undertakes to enforce all standstill, non-disclosure, non-disturbance, non-solicitation and similar covenants that it or offer any of its subsidiaries have entered into prior to determine whether such inquirythe date hereof; provided, proposal or offer may however, that the foregoing shall not prevent the Target Board from considering an Acquisition Proposal that is reasonably be expected likely to lead to a Superior Proposal (it being understood and accepting a Superior Proposal that might be made by any such communications with any such Third Party shall be limited to third party if the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the remaining provisions of this Section 3.02. Stockholder shall promptly Agreement have been complied with.
(but in c) Notwithstanding Sections 7.1(a) and 7.1(b) and any event within one (1) Business Day) advise the Company and Spectrum other provision of this Agreement or of any Acquisition Proposal received by Stockholder, the material terms other agreement between Acquiror and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed thatTarget, if at any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after time following the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder ApprovalTarget Shareholder Approval of the Arrangement Resolution at the Target Meeting, Target receives a bona fide written Acquisition Proposal (that did was not result from any breach solicited after the date hereof in contravention of this Section 3.02 7.1(a) and provided that Target is in compliance with Sections 7.1(b) and 7.2(a)), the Target Board may (directly or through its advisors or Representatives):
(i) if it believes, acting in good faith, that the board Acquisition Proposal could reasonably lead to a Superior Proposal, contact the Person(s) making such Acquisition Proposal and its advisors solely for the purpose of directors clarifying such Acquisition Proposal and any material terms thereof and the conditions thereto and likelihood of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) consummation so as to bedetermine whether such proposal is, or to be is reasonably expected likely to lead to, a Superior Proposal; and
(ii) if, Stockholder may in the opinion of the Target Board, acting in good faith and after receiving advice from its outside financial advisors and outside legal counsel, the Acquisition Proposal constitutes or, if consummated in accordance with its terms (1disregarding, for the purposes of any such determination, any term of such Acquisition Proposal that provides for a due diligence investigation), is reasonably likely to be or lead to a Superior Proposal, then, and only in such case, Target may:
(A) engage in negotiations with, furnish any information with respect to the Company Target and its Subsidiaries to, and afford access subsidiaries to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; providedand/or
(B) participate in discussions or negotiations with, the Person making such Acquisition Proposal, and/or
(C) waive any standstill provision or agreement that prior would otherwise prohibit such person from making an Acquisition Proposal, provided that Target shall not, and shall not allow its Representatives to, disclose any non-public information with respect to furnishing any such information, Stockholder (x) receives from Target to such Person (i) if such non-public information has not been previously provided to, or group an executed is not concurrently provided to, Acquiror; (ii) without entering into a confidentiality and standstill agreement (if one has not already been entered into) which is customary in such situations and which is no less favourable to Target and no more favourable to the counterparty than the confidentiality and standstill provisions contained in the Confidentiality Agreement; and (iii) without providing a copy of such confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third PartyAcquiror.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 2 contracts
Sources: Arrangement Agreement (Levon Resources Ltd.), Arrangement Agreement (Fronteer Gold Inc)
Non-Solicitation. (a) Stockholder 7.1.1 Except as expressly provided in this Article 7, the Vendor shall not, shall cause each of its Subsidiaries not to, and shall not authorize or permit any of its Representatives to, directly or indirectly, through any Vendor Subsidiary or Representative:
(ia) solicit, initiate initiate, knowingly encourage or otherwise knowingly encouragefacilitate (including by way of furnishing or providing copies of, induce access to, or facilitate disclosure of, any Acquisition Proposal Confidential Information, properties, facilities, Books and Records of the Vendor or any Vendor Subsidiary) any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, ;
(b) enter into or (iii) otherwise engage or participate in any negotiations or meaningful discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, Person (other than with the Purchaser) regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer that constitutes or may reasonably be expected to determine whether constitute or lead to, an Acquisition Proposal, provided that the Vendor may (i) advise any Person of the restrictions of this Agreement, (ii) contact the Person for the purposes of seeking clarification of the terms of such Acquisition Proposal, and (iii) advise any Person making an Acquisition Proposal that the Board has determined that such Acquisition Proposal does not constitute a Superior Proposal, in each case, if, in so doing, no other information that is prohibited from being communicated under this Agreement is communicated to such Person;
(c) make a Change in Recommendation; or
(d) approve, recommend or enter into (other than a confidentiality agreement permitted by and in accordance with Section 7.3) or publicly propose to enter into any agreement in respect of an Acquisition Proposal.
7.1.2 Except as expressly provided in this Article 7, the Vendor shall, and shall cause the Vendor Subsidiaries and their respective Representatives to, immediately cease and terminate, and cause to be terminated, any solicitation, encouragement, discussion or negotiations with any Person (other than with the Purchaser) with respect to any inquiry, proposal or offer may that would reasonably be expected to lead constitute an Acquisition Proposal, and in connection therewith, the Vendor will:
(a) immediately discontinue access to a Superior Proposal (it being understood that and disclosure of all information, including any such communications with data room and any such Third Party shall be limited to the clarification Confidential Information, properties, facilities, Books and Records of the original inquiry Vendor and the Vendor Subsidiaries; and
(b) request, and exercise all rights it has to require the return or proposal made by destruction of all copies of any Confidential Information (including all materials including or incorporating or otherwise reflecting such Third Party and shall not include (xConfidential Information) regarding the Vendor or any negotiations or similar discussions with respect Vendor Subsidiary provided to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of other than the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but Purchaser in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any connection with such potential Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after before the date of this Agreement), including using its commercially reasonable efforts to ensure that such requests are fully complied with in accordance with the terms of such rights or entitlements.
7.1.3 The Vendor covenants and agrees not to release any Person from, or waive such Person’s obligations respecting the Vendor, under any confidentiality, standstill or similar agreement or restriction to which the Vendor is a party (it being acknowledged by the Purchaser that the automatic termination or release of any restrictions of any such agreements as a result of entering into and announcing this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, shall not be a bona fide written Acquisition Proposal that did not result from any breach violation of this Section 3.02 and 7.1.3), except to allow such Person to make an Acquisition Proposal confidentially to the Board that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to beconstitutes, or to could reasonably be reasonably expected to constitute or lead to, a Superior Proposal, Stockholder may (1) engage in negotiations provided that the remaining provisions of this Article 7 are complied with, furnish and the Vendor undertakes to seek to enforce, or cause the Vendor Subsidiaries to seek to enforce, all confidentiality, standstill, or similar agreements or restrictions that it or any information with respect of the Vendor Subsidiaries have entered into prior to the Company and its Subsidiaries to, and afford access to date hereof or enter into after the business, properties, assets, books date hereof (it being acknowledged by the Purchaser that the automatic termination or records release of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any restrictions of any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms agreements as a result of entering into and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in announcing this Agreement shall apply to or limit in any way not be a change violation of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transactionthis Section 7.1.3).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 2 contracts
Sources: Arrangement Agreement, Arrangement Agreement (SNDL Inc.)
Non-Solicitation. (a1) Stockholder Except as provided in this Article 5, the Company and its Subsidiaries shall not, shall cause each of its Subsidiaries not to, and shall not authorize or permit any of its Representatives to, directly or indirectly, through any officer, director, employee, representative (iincluding any financial or other advisor) or agent of the Company or of any of its Subsidiaries (collectively, “Representatives”):
(a) solicit, initiate assist, initiate, encourage or knowingly encourageotherwise facilitate (including by way of furnishing or providing copies of, induce access to, or facilitate disclosure of, any Acquisition Proposal confidential information, properties, facilities, books or records of the Company or any of its Subsidiaries or entering into any form of agreement, arrangement or understanding) any inquiry, proposal or offer that may constitutes or could reasonably be expected to constitute or lead to, an Acquisition Proposal;
(b) continue, enter into or otherwise engage or participate in any discussions or negotiations with any Person (other than the Purchasers and their affiliates) regarding any Acquisition Proposal or inquiry, proposal or offer reasonably expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding provided that the Company or afford access may (i) communicate in writing (with a copy to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in Purchasers) to any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to Person solely for the contrary in this Agreement, any such Person may (A) seek to clarify purposes of clarifying the terms and conditions of any inquiry, proposal or offer made by such Person that constitutes or would reasonably be expected to determine whether constitute or lead to, an Acquisitions Proposal (provided such inquiry, proposal or offer may reasonably be expected to lead to did not result from a breach by the Company of its obligations under this Article 5); (ii) advise any Person of the restrictions of this Agreement; and (iii) advise any Person making an Acquisition Proposal that the Board has determined that such Acquisition Proposal does not constitute a Superior Proposal, in each case, if, in so doing, no other information that is prohibited from being communicated under this Agreement is communicated to such Person;
(c) make a Change in Recommendation;
(d) accept, approve, endorse or recommend, or publicly propose to accept, approve, endorse or recommend, or take no position or remain neutral with respect to, any Acquisition Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry publicly taking no position or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions a neutral position with respect to a publicly announced, or otherwise publicly disclosed, Acquisition Proposal for a period of no more than five (5) Business Days following such announcement or public disclosure will not be considered to be in violation of this Section 5.1 (or in the event that the Company Meetings are scheduled to occur within such five (5) Business Days period, prior to the third (3rd) Business Day prior to the date of the Company Meetings), provided the Board has rejected such Acquisition Proposal and affirmed the Board Recommendation before the end of such five (5) Business Day period); or
(e) accept, approve, endorse, recommend or execute or enter into or publicly propose to accept, approve, endorse, recommend or execute or enter into any agreement, letter of intent, understanding or arrangement in respect of an Acquisition Proposal (other than a confidentiality agreement permitted by and in accordance with Section 5.3).
(2) The Company shall, and shall cause its Subsidiaries and its and their Representatives to, immediately cease and terminate, and cause to be terminated, any solicitation, encouragement, discussion, negotiation or other activities commenced prior to the date of this Agreement with any Person (other than the Purchasers, the Equity Investor and their respective affiliates) with respect to any inquiry, proposal or offer that constitutes, or would reasonably be expected to constitute or lead to, an Acquisition Proposal, and in connection therewith, the Company will:
(ya) immediately discontinue disclosure of information to and access to the Data Room, any confidential information, properties, facilities and books and records for any such Person’s view or position with respect thereto; and
(b) and within three (B3) inform any Person that makes an Acquisition Proposal Business Days of the restrictions imposed by date hereof, request to the provisions extent it is entitled to do so, (i) the return or destruction of this Section 3.02. Stockholder shall promptly (but in all copies of any event within one (1) Business Day) advise confidential information regarding the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes provided to any action that would constitute a breach such Person and (ii) the destruction of this Section 3.02 if it were authorized all material including or permitted by Stockholder, incorporating or otherwise reflecting such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder confidential information regarding the Company or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not Subsidiaries provided to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a)Person, in each case using its commercially reasonable efforts to ensure that such requests are fully complied with in accordance with the event that Stockholder receives, after the date terms of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, such rights or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Partyentitlements.
(b3) Notwithstanding anything herein The Company covenants and agrees that (i) it shall take all commercially reasonable action necessary to the contraryenforce each confidentiality, Section 3.02(astandstill or similar agreement, restriction or covenant to which it or any of its Subsidiaries is a party and (ii) shall not prohibit neither it, nor any of its Subsidiaries or limit Stockholder from taking any action (of their respective Representatives have or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees thatwill, without the prior written consent of Spectrumthe Purchasers (which may be withheld or delayed in the Purchasers’ sole and absolute discretion), neither it nor release any Person from, or waive, amend, suspend or otherwise modify such Person’s obligations respecting the Company or any of its Affiliates Subsidiaries under any confidentiality, standstill or similar agreement, restriction or covenant to which the Company or any of its Subsidiaries is a party (it being acknowledged by the Purchasers that the automatic termination or release of any standstill restrictions as a result of entering into and announcing this Agreement shall purchase, directly or indirectly, any shares not be a violation of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stockthis Section 5.1(3)).
Appears in 2 contracts
Sources: Arrangement Agreement (Atlantic Power Corp), Arrangement Agreement
Non-Solicitation. (a) Stockholder shall notReShape agrees that, shall cause each except as expressly contemplated hereby, neither it nor any of its Subsidiaries not toshall, and ReShape shall, and shall cause its Subsidiaries to, instruct its and their respective Representatives not authorize to directly or permit indirectly (i) initiate, seek, or solicit, or knowingly encourage or facilitate (including by way of furnishing non-public information) or take any of its Representatives toother action that is reasonably expected to promote, directly or indirectly, any inquiries or the making or submission of any proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal with respect to ReShape, (iii) solicitparticipate or engage in discussions or negotiations with, initiate or knowingly encouragedisclose any non-public information or data relating to ReShape or any of its Subsidiaries or afford access to the properties, induce books or facilitate records of ReShape or any of its Subsidiaries to any Person that has made an Acquisition Proposal with respect to ReShape, or (iii) enter into any agreement, including any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement, with respect to an Acquisition Proposal with respect to ReShape (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.04). ReShape shall, and shall cause its Subsidiaries and instruct its and their respective Representatives to, immediately upon the execution of this Agreement cause to be terminated any solicitation, encouragement, discussion or negotiation with or involving any Person (other than Obalon and its Affiliates) conducted heretofore by ReShape or any Subsidiary thereof or any of its or their respective Representatives, with respect to an Acquisition Proposal or any inquiry, proposal or offer that may which could reasonably be expected to lead to an Acquisition ProposalProposal and in connection therewith, ReShape will immediately discontinue access by any Person (iiother than Obalon and its Affiliates) furnish to any nonpublic information regarding the Company data room (virtual or afford access to the Company’s business, properties, assets, books otherwise) established by ReShape or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding its Representatives for such purpose. Notwithstanding anything to the contrary in this Agreement, prior to obtaining ReShape Stockholder Approval, ReShape and the ReShape Board may take any such Person may actions described in clause (Aii) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead this Section 6.04(a) with respect to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include third party if (x) any negotiations or similar discussions ReShape receives a written Acquisition Proposal with respect to ReShape from such inquirythird party (and such Acquisition Proposal was not initiated, proposal sought, solicited, knowingly encouraged or offer or facilitated in violation of this Section 6.04) and (y) such Person’s view proposal constitutes, or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company ReShape Board determines in good faith (faith, after consultation with its outside legal counsel and a financial advisor of nationally recognized reputation) to beadvisors, or to that such proposal is reasonably be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information Proposal with respect to the Company and its Subsidiaries toReShape, and afford access provided that ReShape may deliver non-public information to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior third party only pursuant to furnishing any such information, Stockholder (x) receives from such Person or group an executed a confidentiality agreement containing terms no less favorable to ReShape with respect to confidentiality than the terms of the Confidentiality Agreement (including any standstill agreement or similar provisions) (an “Acceptable Confidentiality Agreement”). Nothing contained in this Section 6.04 shall prohibit ReShape or ReShape Board from taking and restrictions that are customary for confidentiality agreements executed disclosing to holders of ReShape Common Stock a position with respect to an Acquisition Proposal with respect to ReShape pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (either case to the extent required by applicable Law if the ReShape Board has reasonably determined in good faith, after consultation with ReShape’s outside legal counsel, that the failure to do so would be reasonably likely to be a breach of its fiduciary duties to the ReShape Stockholders; provided that this sentence shall not previously provided permit the ReShape Board to make a ReShape Adverse Recommendation Change, except to the extent permitted by Section 6.04(b) or made available) substantially concurrently with it being provided or made available to such Third PartySection 6.04(c).
(b) Neither the ReShape Board nor any committee thereof shall directly or indirectly (i) withhold, withdraw (or amend, qualify or modify in a manner adverse to Obalon or Merger Sub), or publicly propose to withdraw (or amend, qualify or modify in a manner adverse to Obalon or Merger Sub), the approval, recommendation or declaration of advisability by the ReShape Board or any such committee of the transactions contemplated by this Agreement, (ii) propose publicly to recommend, adopt or approve, any Acquisition Proposal with respect to ReShape, or (iii) fail to reaffirm or re-publish the ReShape Recommendation within five (5) Business Days of being requested by Obalon to do so (any action described in this sentence being referred to as a “ReShape Adverse Recommendation Change”). For the avoidance of doubt, a change of ReShape Recommendation to “neutral” is a ReShape Adverse Recommendation Change. Notwithstanding anything herein the foregoing, at any time prior to obtaining ReShape Stockholder Approval, and subject to ReShape’s compliance at all times with the provisions of this Section 6.04 and Section 6.03, in response to a Superior Proposal with respect to ReShape that has not been withdrawn and did not result from a breach of Section 6.04(a), the ReShape Board may make a ReShape Adverse Recommendation Change; provided, however, that unless the ReShape Stockholders’ Meeting is scheduled to occur within the next ten (10) Business Days, ReShape shall not be entitled to exercise its right to make a ReShape Adverse Recommendation Change in response to a Superior Proposal with respect to ReShape (x) until five (5) Business Days after ReShape provides written notice to Obalon advising Obalon that the ReShape Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal, identifying the Person or group making such Superior Proposal and including copies of all documents pertaining to such Superior Proposal (y) if during such five (5) Business Day period, Obalon proposes any alternative transaction (including any modifications to the contraryterms of this Agreement), Section 3.02(aunless ReShape Board determines in good faith, after good faith negotiations between ReShape and Obalon (if such negotiations are requested by Obalon) shall not prohibit or limit Stockholder from during such five (5) Business Day period (after taking any action (or inactioninto account all financial, legal, and regulatory terms and conditions of such alternative transaction proposal and expected timing of consummation and the relative risks of non-consummation of the alternative transaction proposal and the Superior Proposal) that such alternative transaction proposal is not at least as favorable to ReShape and its stockholders as the Superior Proposal and (z) unless ReShape Board determines that the failure to make a ReShape Adverse Recommendation Change would not constitute be a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreementits fiduciary obligations.
(c) Nothing set forth Notwithstanding the first sentence of Section 6.04(b), at any time prior to obtaining ReShape Stockholder Approval, in connection with any Intervening Event, the ReShape Board may make a ReShape Adverse Recommendation Change, after ReShape Board (i) determines in good faith that the failure to make such ReShape Adverse Recommendation Change would be a breach of its fiduciary duties to the stockholders of ReShape, (ii) determines in good faith that the reasons for making such ReShape Adverse Recommendation Change are independent of and unrelated to any pending Acquisition Proposal with respect to ReShape, and (iii) provides written notice to Obalon (a “ReShape Notice of Change”) advising Obalon that ReShape Board is contemplating making a ReShape Adverse Recommendation Change and specifying the material facts and information constituting the basis for such contemplated determination; provided, however, that, unless the ReShape Stockholders’ Meeting is scheduled to occur within the next five (5) Business Days, (x) ReShape Board may not make such a ReShape Adverse Recommendation Change until the fifth Business Day after receipt by Obalon of ReShape Notice of Change and (y) during such five (5) Business Day period, at the request of Obalon, ReShape shall negotiate in good faith with respect to any changes or modifications to this Agreement shall apply which would allow ReShape Board not to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent companymake such ReShape Adverse Recommendation Change, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction)consistent with its fiduciary duties.
(d) Stockholder Obalon agrees that, without the prior written consent of Spectrumexcept as expressly contemplated hereby, neither it nor any of its Affiliates Subsidiaries shall, and Obalon shall, and shall purchaseinstruct its Subsidiaries to, instruct its and their respective Representatives not to directly or indirectly (i) initiate, seek, or solicit, or knowingly encourage or facilitate (including by way of furnishing non-public information) or take any other action that is reasonably expected to promote, directly or indirectly, any shares inquiries or the making or submission of Saturn Common Stock any proposal that constitutes, or securities would reasonably be expected to lead to, an Acquisition Proposal with respect to Obalon, (ii) participate or engage in discussions or negotiations with, or disclose any non-public information or data relating to Obalon or any of Spectrum convertible its Subsidiaries or afford access to the properties, books or records of Obalon or any of its Subsidiaries to any Person that has made an Acquisition Proposal with respect to Obalon, or (iii) enter into any agreement, including any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, or exchangeable other similar agreement with respect to an Acquisition Proposal with respect to Obalon (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.04). Obalon shall, and shall cause its Subsidiaries and instruct its and their respective Representatives to, immediately upon the execution of this Agreement cause to be terminated any solicitation, encouragement, discussion or exercisable negotiation with or involving any Person (other than ReShape and its Affiliates) conducted heretofore by Obalon or any Subsidiary thereof or any of its or their respective Representatives, with respect to an Acquisition Proposal or which could reasonably be expected to lead to an Acquisition Proposal and in connection therewith, Obalon will immediately discontinue access by any Person (other than ReShape and its Affiliates) to any data room (virtual or otherwise) established by Obalon or its Representatives for shares such purpose. Notwithstanding anything to the contrary in this Agreement, prior to obtaining the Obalon Stockholder Approval, Obalon and the Obalon Board may take any actions described in clause (ii) of Saturn Common Stockthis Section 6.04(d) with respect to a third party if (x) Obalon receives a written Acquisition Proposal with respect to Obalon from such third party (and such Acquisition Proposal was not initiated, sought, solicited, knowingly encouraged or facilitated in violation of this Section 6.04) and (y) such proposal constitutes, or the Obalon Board determines in good faith that such proposal is reasonably be expected to lead to, a Superior Proposal with respect to Obalon, provided that Obalon may deliver non-public information to such third party only pursuant to an Acceptable Confidentiality Agreement (but in relation to Obalon rather than ReShape). Nothing contained in this Section 6.04 shall prohibit Obalon or the Obalon Board from taking and disclosing to the Obalon Stockholders a position with respect to an Acquisition Proposal with respect to Obalon pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, if the Obalon Board has reasonably determined in good faith, after consultation with Obalon’s outside legal counsel, that the failure to do so would be reasonably likely to be a breach of its fiduciary duties; provided that this sentence shall not permit the Obalon Board to make an Obalon Adverse Recommendation Change, except to the extent permitted by Section 6.04(e) or Section 6.04(f).
(e) Neither the Obalon Board nor any committee thereof shall directly or indirectly (i) withhold, withdraw (or amend, qualify or modify in a manner adverse to ReShape), or publicly propose to withdraw (or amend, qualify or modify in a manner adverse to ReShape), the approval, recommendation or declaration of advisability by the Obalon Board or any such committee of the transactions contemplated by this Agreement including the issuance of Obalon Shares in the Merger, (ii) propose publicly to recommend, adopt or approve, any Acquisition Proposal with respect to Obalon or (iii) fail to reaffirm or re-publish the Obalon Recommendation within five (5) Business Days of being requested by ReShape to do so (any action described in this sentence being referred to as an “Obalon Adverse Recommendation Change”). For the avoidance of doubt, a change of Obalon Recommendation to “neutral” is an Obalon Adverse Recommendation Change. Notwithstanding the foregoing, at any time prior to obtaining the Obalon Stockholder Approval, and subject to Obalon’s compliance at all times with the provisions of this Section 6.04 and Section 6.03, in response to a Superior Proposal with respect to Obalon that has not been withdrawn and did not result from a breach of Section 6.04(d), the Obalon Board may make an Obalon Adverse Recommendation Change; provided, however, that unless the Obalon Stockholders’ Meeting is scheduled to occur with the next ten (10) Business Days, Obalon shall not be entitled to exercise its right to make an Obalon Adverse Recommendation Change in response to a Superior Proposal with respect to Obalon (x) until five (5) Business Days after Obalon provides written notice to ReShape advising ReShape that the Obalon Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal, identifying the Person or group making such Superior Proposal and including copies of all documents pertaining to such Superior Proposal, (y) if during such five (5) Business Day period, ReShape proposes any alternative transaction (including any modifications to the terms of this Agreement), unless the Obalon Board determines in good faith, after good faith negotiations between Obalon and ReShape (if such negotiations are requested by ReShape) during such five (5) Business Day period (after and taking into account all financial, legal, and regulatory terms and conditions of such alternative transaction proposal and expected timing of consummation and the relative risks of non-consummation of the alternative transaction proposal and the Superior Proposal) that such alternative transaction proposal is not at least as favorable to Obalon and its stockholders as the Superior Proposal and (z) unless the Obalon Board determines that the failure to make an Obalon Adverse Recommendation Change would be a breach of its fiduciary obligations.
(f) Notwithstanding the first sentence of Section 6.04(e), at any time prior to obtaining the Obalon Stockholder Approval, in connection with any Intervening Event, the Obalon Board may make an Obalon Adverse Recommendation Change after the Obalon Board (i) determines in good faith that the failure to make such Obalon Adverse Recommendation Change would be a breach of its fiduciary duties to the stockholders of Obalon, (ii) determines in good faith that the reasons for making such Obalon Adverse Recommendation Change are independent of and unrelated to any pending Acquisition Proposal with respect to ReShape, and (iii) provides written notice to Obalon (an “Obalon Notice of Change”) advising ReShape that the Obalon Board is contemplating making an Obalon Adverse Recommendation Change and specifying the material facts and information constituting the basis for such contemplated determination; provided, however, that, unless the Obalon Stockholders’ Meeting is scheduled to occur within the next five (5) Business Days, (x) the Obalon Board may not make such an Obalon Adverse Recommendation Change until the fifth Business Day after receipt by ReShape of the Obalon Notice of Change and (y) during such five (5) Business Day period, at the request of ReShape, Obalon shall negotiate in good faith with respect to any changes or modifications to this Agreement which would allow the Obalon Board not to make such Obalon Adverse Recommendation Change, consistent with its fiduciary duties.
(g) Obalon and ReShape agree that in addition to their respecti
Appears in 2 contracts
Sources: Merger Agreement (ReShape Lifesciences Inc.), Merger Agreement (Obalon Therapeutics Inc)
Non-Solicitation. (a) Stockholder shall notSubject to any actions which ▇▇▇▇▇▇ is required to take so as to comply with the requirements of the Takeover Rules, shall cause each ▇▇▇▇▇▇ agrees that neither it nor any Subsidiary of its Subsidiaries not to▇▇▇▇▇▇ shall, and that it shall use all reasonable endeavours to cause its and their respective Representatives and any person Acting in Concert with ▇▇▇▇▇▇ not authorize or permit any of its Representatives to, directly or indirectly, : (i) solicit, initiate or knowingly encourageencourage any enquiry with respect to, induce or facilitate the making or submission of, any Acquisition ▇▇▇▇▇▇ Alternative Proposal, (ii) participate in any discussions or negotiations regarding a ▇▇▇▇▇▇ Alternative Proposal with, or furnish any nonpublic information regarding a ▇▇▇▇▇▇ Alternative Proposal to, any person that has made or, to ▇▇▇▇▇▇’▇ knowledge, is considering making a ▇▇▇▇▇▇ Alternative Proposal, except to notify such person as to the existence of the provisions of this Clause 5.3, or (iii) waive, terminate, modify or fail to use reasonable endeavours to enforce any provision of any “standstill” or similar obligation of any person with respect to ▇▇▇▇▇▇ or any inquiryof its Subsidiaries or, except as otherwise provided in this Agreement, amend or terminate the ▇▇▇▇▇▇ Rights Agreement or redeem the rights of ▇▇▇▇▇▇ Shareholders thereunder so as to facilitate the making of a ▇▇▇▇▇▇ Alternative Proposal (provided that ▇▇▇▇▇▇ shall not be required to take, or be prohibited from taking, any action otherwise prohibited or required by this subclause (iii) if the ▇▇▇▇▇▇ Board determines in good faith (after consultation with ▇▇▇▇▇▇’▇ legal advisors) that such action or inaction would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law). ▇▇▇▇▇▇ shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any person conducted heretofore with respect to any ▇▇▇▇▇▇ Alternative Proposal, or any enquiry or proposal or offer that may reasonably be expected to lead to an Acquisition a ▇▇▇▇▇▇ Alternative Proposal, request the prompt return or destruction of all confidential information previously furnished in connection therewith and immediately terminate all physical and electronic dataroom access previously granted to any such person or its Representatives.
(iib) Notwithstanding the limitations set forth in Clause 5.3(a), if ▇▇▇▇▇▇ receives a bona fide written ▇▇▇▇▇▇ Alternative Proposal or enquiry or proposal from a person who is intending on making a ▇▇▇▇▇▇ Alternative Proposal and the ▇▇▇▇▇▇ Board determines in good faith (after consultation with ▇▇▇▇▇▇’▇ financial advisors and legal counsel) that the failure to take the actions described in clauses (x) and (y) below would be reasonably likely to be inconsistent with the directors’ fiduciary duties under applicable Law, and which ▇▇▇▇▇▇ Alternative Proposal, enquiry or proposal was made after the date of this Agreement and did not otherwise result from a knowing or intentional breach of this Clause 5.3, ▇▇▇▇▇▇ may take any or all of the following actions: (x) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books third party (and any persons working in concert with such third party and to their respective potential financing sources and Representatives) making or records to, or otherwise knowingly cooperate in any way with, any Third Party intending to make such ▇▇▇▇▇▇ Alternative Proposal (provided that is reasonably expected all such information has previously been provided to make, Eaton or is otherwise seeking provided to makeEaton substantially concurrently with the time it is provided to such person(s)), or has madeif, and only if, prior to so furnishing such information, ▇▇▇▇▇▇ receives from the third party an Acquisition Proposalexecuted confidentiality agreement on terms not less restrictive of such person, or with respect to confidentiality, than the Confidentiality Agreement and (iiiy) participate engage in any discussions or negotiations with the third party (and such other persons) with respect to such ▇▇▇▇▇▇ Alternative Proposal. ▇▇▇▇▇▇ will promptly (and in any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to event within 48 hours of receipt) notify Eaton orally and in writing of the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions receipt of any inquiry, ▇▇▇▇▇▇ Alternative Proposal or any communication or proposal or offer to determine whether such inquiry, proposal or offer that may reasonably be expected to lead to a Superior ▇▇▇▇▇▇ Alternative Proposal (it being understood that and shall, in the case of any such communications with any such Third Party shall be limited notice to the clarification Eaton as to receipt of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquirya ▇▇▇▇▇▇ Alternative Proposal, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, indicate the material terms and conditions of any such Acquisition ▇▇▇▇▇▇ Alternative Proposal (including any changes to such material changes theretoterms and conditions) and the identity of the Person person making any such Acquisition ▇▇▇▇▇▇ Alternative Proposal and thereafter shall promptly keep Eaton reasonably informed on a reasonably current basis of any material change to the terms and status of any such ▇▇▇▇▇▇ Alternative Proposal. Without limiting the foregoing, it is agreed that, if ▇▇▇▇▇▇ shall provide to Eaton as soon as reasonably practicable after receipt or delivery thereof (and in any Representative event within 48 hours of Stockholder receipt or delivery) copies of all written correspondence and other written material exchanged between ▇▇▇▇▇▇ or any of its Subsidiaries takes any action and the person making a ▇▇▇▇▇▇ Alternative Proposal (or such person’s Representatives) that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or describes any of the material terms or conditions of such ▇▇▇▇▇▇ Alternative Proposal, including draft agreements or term sheets submitted in connection therewith. ▇▇▇▇▇▇ shall not, and shall cause its SubsidiariesSubsidiaries not to, unless such Representative has agreed (in enter into any capacity) in a writing enforceable by such party not confidentiality agreement with any person subsequent to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement that prohibits ▇▇▇▇▇▇ from providing such information to Eaton.
(c) Except as set forth in Clauses 5.3(d), (e) and (f) below, neither the ▇▇▇▇▇▇ Board nor any committee thereof shall (i) (A) withdraw (or modify in any manner adverse to Eaton), or propose publicly to withdraw (or modify in any manner adverse to Eaton), the Scheme Recommendation or (B) approve, recommend or declare advisable, or propose publicly to approve, recommend or declare advisable, any ▇▇▇▇▇▇ Alternative Proposal (any action in this subclause (i) being referred to as a “▇▇▇▇▇▇ Change of Recommendation”) (it being agreed that (x) no “stop, look and listen” communication pursuant to Rule 14d-9(f) of the Exchange Act in and of itself shall constitute a ▇▇▇▇▇▇ Change of Recommendation and (y) for the avoidance of doubt, the provision by ▇▇▇▇▇▇ to Eaton of notice or information in connection with a ▇▇▇▇▇▇ Alternative Proposal or ▇▇▇▇▇▇ Superior Proposal as required or expressly permitted by this Agreement shall not, in and of itself, constitute a ▇▇▇▇▇▇ Change of Recommendation) or (ii) cause or allow ▇▇▇▇▇▇ or any of its Subsidiaries to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, transaction agreement, implementation agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or other agreement constituting or with respect to, or that would reasonably be expected to lead to, any ▇▇▇▇▇▇ Alternative Proposal, or requiring, or reasonably expected to cause, ▇▇▇▇▇▇ to abandon, terminate, delay or fail to consummate the Acquisition (other than as contemplated by Clause 5.3(i)(i) and other than a confidentiality agreement referred to in Clause 5.3(b)).
(d) Nothing in this Agreement shall prohibit or restrict the ▇▇▇▇▇▇ Board, at any time prior to obtaining the ▇▇▇▇▇▇ Stockholder Shareholder Approval, from making a bona fide written Acquisition Proposal that did not result from any breach ▇▇▇▇▇▇ Change of this Section 3.02 and that Recommendation if the board of directors of the Company determines ▇▇▇▇▇▇ Board has concluded in good faith (after consultation with ▇▇▇▇▇▇’▇ outside legal counsel and financial advisors) (i) that a financial advisor ▇▇▇▇▇▇ Alternative Proposal constitutes a ▇▇▇▇▇▇ Superior Proposal and (ii) that the failure to make a ▇▇▇▇▇▇ Change of nationally recognized reputation) to be, or Recommendation would be reasonably likely to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information inconsistent with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposaldirectors’ fiduciary duties under applicable Law; provided, however, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides ▇▇▇▇▇▇ shall have provided prior written notice to Spectrum and Eaton, at least 24 hours in advance, of the Company; provided, further, that all ▇▇▇▇▇▇ Board’s intention to make such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party▇▇▇▇▇▇ Change of Recommendation.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(ce) Nothing set forth in this Agreement shall apply prohibit or restrict the ▇▇▇▇▇▇ Board, in response to or limit an Intervening Event, from making a ▇▇▇▇▇▇ Change of Recommendation at any time prior to obtaining the ▇▇▇▇▇▇ Shareholder Approval if the failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law. Notwithstanding any ▇▇▇▇▇▇ Change of Recommendation, unless this Agreement has been terminated in any way a change accordance with Clause 9, ▇▇▇▇▇▇ shall hold the Court Meeting and the EGM in accordance with Clause 3.1 for purposes of control obtaining the approval of Stockholder (or Stockholder’s ultimate publicly traded parent companythe Resolutions by the requisite majorities of ▇▇▇▇▇▇ Shareholders, as applicable) (whether by virtue and nothing contained herein shall be deemed to relieve ▇▇▇▇▇▇ of a merger, acquisition, consolidation or other similar transaction)such obligation.
(df) Stockholder agrees thatNothing contained in this Agreement shall prohibit or restrict ▇▇▇▇▇▇ or the ▇▇▇▇▇▇ Board from (i) taking and disclosing to the ▇▇▇▇▇▇ Shareholders a position or making a statement contemplated by Rule 14d-9, Rule 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, or other applicable Law, or (ii) making any disclosure to the ▇▇▇▇▇▇ Shareholders if, in the good faith judgment of the ▇▇▇▇▇▇ Board (after consultation with ▇▇▇▇▇▇’▇ outside legal advisors), failure to so disclose and/or take would be reasonably likely to give rise to a violation of applicable Law; provided, however, that any disclosure of a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act that relates to the approval, recommendation or declaration of advisability by the ▇▇▇▇▇▇ Board with respect to this Agreement or a ▇▇▇▇▇▇ Alternative Proposal shall be deemed to be a ▇▇▇▇▇▇ Change of Recommendation unless ▇▇▇▇▇▇ in connection with such disclosure publicly states that the ▇▇▇▇▇▇ Board expressly rejects the applicable ▇▇▇▇▇▇ Alternative Proposal, expressly states that its recommendation with respect to this Agreement has not changed or refers to the prior recommendation of the ▇▇▇▇▇▇ Board, without the prior written consent of Spectrumdisclosing any Change in Recommendation.
(g) As used in this Agreement, neither it nor “▇▇▇▇▇▇ Alternative Proposal” shall mean any bona fide proposal or bona fide offer made by any person (other than a proposal or offer by Eaton or any of its Affiliates shall purchaseAssociates or any person Acting in Concert with Eaton pursuant to Rule 2.5 of the Takeover Rules) for (i) the acquisition of ▇▇▇▇▇▇ by scheme of arrangement, directly takeover offer or indirectlybusiness combination transaction; (ii) the acquisition by any person of 25% or more of the assets of ▇▇▇▇▇▇ and its Subsidiaries, any shares of Saturn Common Stock taken as a whole, measured by either book value or fair market value (including equity securities of Spectrum convertible into ▇▇▇▇▇▇’▇ Subsidiaries); (iii) the acquisition by any person (or exchangeable the stockholders of any person) of 25% or exercisable for shares more of Saturn Common Stockthe outstanding ▇▇▇▇▇▇ Shares; or (iv) any merger, business combination, consolidation, share exchange, recapitalisation or similar transaction involving ▇▇▇▇▇▇ as a result of which the holders of ▇▇▇▇▇▇ Shares immediately prior to such transaction do not, in the aggregate, own at least 75% of the outstanding voting power of the surviving or resulting entity in such transaction immediately after consummation thereof, other than in each case a transaction of the type described in Clause 5.3(g) of the ▇▇▇▇▇▇ Disclosure Schedule.
Appears in 2 contracts
Sources: Transaction Agreement (Eaton Corp), Transaction Agreement (Cooper Industries PLC)
Non-Solicitation. (a) Stockholder Until the earlier of (A) consummation of the Closing and (B) termination of this Agreement, the Company shall not, nor shall cause each of it authorize or knowingly permit its Subsidiaries not to, and shall not authorize or permit any of its Representatives representatives to, directly or indirectly, (i) solicit, initiate or knowingly encourageencourage or assist (including by way of furnishing information) the submission by any third party of an Acquisition Proposal, induce or facilitate any Acquisition Proposal or any inquiry, proposal or offer that may is reasonably be expected likely to lead to an Acquisition Proposal, or (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s businessengage in, properties, assets, books or records to, continue or otherwise knowingly cooperate participate in any way with, any Third Party that is reasonably expected to make, negotiations or is otherwise seeking to make, or has made, discussions regarding an Acquisition Proposal, or (iii) participate in provide any discussions information or negotiations with data to any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything Person relating to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not case with the intent to take any such action. Notwithstanding induce the restrictions set forth above in this Section 3.02(a)making, in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to besubmission or announcement of, or to be reasonably expected to lead toencourage, a Superior Proposalfacilitate or assist, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such an Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing contrary set forth in Section 4.10(a) above, the Company and its representatives may (i) provide information in response to a request therefor by a Person who has made a bona fide written Acquisition Proposal, if the Person so requesting such information executes an acceptable confidentiality agreement (which shall be promptly provided to Purchaser), provided, that any non-public information provided to such Person shall have been previously delivered or made available to Purchaser or its representatives, and (ii) engage in negotiations or discussions with any Person who has made a bona fide written Acquisition Proposal, if in each such case, such Acquisition Proposal did not result from a breach of this Agreement Section 4.9 and the Company’s Board of Directors determines in good faith (A) after consultation with outside legal counsel that the failure to take such action would reasonably be expected to be inconsistent with the Company directors’ fiduciary duties under applicable Law, and (B) such Acquisition Proposal constitutes a Superior Proposal or could reasonably result in a Superior Proposal. The Company shall apply keep the Purchaser reasonably informed of the status of any such negotiations or discussions and promptly provide copies of all material written correspondence relating to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction)such Acquisition Proposal.
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Solar Power, Inc.), Securities Purchase Agreement (ZBB Energy Corp)
Non-Solicitation. (a) Stockholder Upon execution of this Agreement, DGLP shall not, and shall cause each of Subsidiary and its Subsidiaries not and their respective Representatives to cease immediately and cause to be terminated any and all existing activities, discussions or negotiations with any Person conducted heretofore with respect to, or that may reasonably be expected to lead to, an Acquisition Proposal. Seller shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to an Acquisition Proposal with or for the benefit of Seller to promptly return or destroy all information, documents, and shall not authorize materials relating to the Acquisition Proposal or permit to Seller or its businesses, operations or affairs heretofore furnished by Seller or any of its Representatives to such Person or any of its Representatives in accordance with the terms of any confidentiality agreement with such Person.
(b) Except as authorized or permitted in this Section 5.15, DGLP agrees that neither it nor Subsidiary shall, and that it shall cause its and Subsidiary’s respective Representatives not to, directly or indirectly, (i) initiate, solicit, initiate or knowingly encourage, induce encourage or knowingly facilitate any Acquisition Proposal or the submission of any inquiry, indication of interest, proposal or offer that may constitutes, or would reasonably be expected to lead to to, an Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to makeregarding, or has madefurnish any non-public information to any Person (other than Buyer) in connection with, an Acquisition Proposal, regarding (iii) enter into any letter of intent or agreement related to an Acquisition Proposal (other than a confidentiality agreement as contemplated by Section 5.15(c)), or (iv) approve or recommend an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may .
(Ac) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Notwithstanding Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a5.15(b), in the event that Stockholder receives, after from the date of this Agreement hereof and prior to obtaining the ▇▇▇▇▇▇ receipt of the Seller Stockholder Approval, a if Seller or its Representatives receive an unsolicited bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company Seller determines in good faith (faith, after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) to beadvisors, constitutes, or to be is reasonably expected likely to lead to, a Superior Proposal, Stockholder Seller may take the following actions: (1i) engage in negotiations with, furnish any information with respect to DGLP and Subsidiary or the Company and its Subsidiaries to, and afford access Business to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) third party making such Acquisition Proposal; providedProposal (a “Qualified Bidder”), that prior to furnishing any such information, Stockholder (x) provided Seller receives from such Person or group the Qualified Bidder an executed confidentiality agreement containing terms and restrictions provided that are customary for such confidentiality agreements executed in similar circumstances agreement shall not contain any provisions that would prevent Seller from complying with its obligations to provide Buyer with the required notices under Sections 5.15(e) and (y) provides prior written notice to Spectrum g), and the Company; provided, further, further provided that all such information provided to such Qualified Bidder has been previously provided to Buyer prior to or concurrently with the time it is provided to such Qualified Bidder; and (ii) engage in discussions or made available to Spectrum negotiations with the Qualified Bidder and the Company (its Representatives with respect to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction)Acquisition Proposal.
(d) Except as otherwise provided in Section 5.15(e), neither the Seller Board nor any committee of the Seller Board may withdraw or change in a manner adverse to Buyer the Seller Recommendation, or propose publicly to approve, adopt or recommend any Acquisition Proposal (an “Adverse Recommendation Change”).
(e) Notwithstanding Section 5.15(d), at any time prior to receipt of the Seller Stockholder agrees Approval, the board of directors of Seller may in response to a Superior Proposal that did not result from a breach by Seller of this Section 5.15, (i) effect an Adverse Recommendation Change, and/or (ii) enter into a definitive agreement with respect to such Superior Proposal (an “Acquisition Agreement”) and simultaneously terminate this Agreement in accordance with Section 8.1(h) if the Seller Board determines in good faith, after consultation with Seller’s outside legal counsel that failure to do so would reasonably be likely to result in a breach of its fiduciary obligations under applicable Legal Requirements; provided, however, that such actions may only be taken at a time that is (A) after the fourth (4th) Business Day following Buyer’s receipt of written notice from Seller that the Seller Board is prepared to take such action (the “Subsequent Determination Notice”), such notice will identify the Person making such Superior Proposal and attach the most current version of any agreement relating to the Superior Proposal (it being understood and agreed that any material amendment to such Superior Proposal, including the financial terms of such Superior Proposal, shall require the delivery of a new Subsequent Determination Notice and the commencement of a new four (4) Business Day period), and (B) at the end of such period, the Seller Board determines in good faith, after taking into account all amendments or revisions irrevocably committed to by Buyer and after consultation with outside legal counsel and financial advisors, that such Acquisition Proposal remains a Superior Proposal. During any such four (4) Business Day period, Buyer shall be entitled to deliver to Seller one or more counterproposals to such Acquisition Proposal, and Seller shall give Buyer the opportunity to meet and negotiate with Seller and its Representatives.
(f) In addition, and notwithstanding the foregoing, at any time prior to receipt of the Seller Stockholder Approval, the Seller Board may, in response to a material development or change in circumstances occurring or arising after the date hereof that was neither known to the Seller Board nor reasonably foreseeable as of or prior to the date hereof (and not relating to any Acquisition Proposal) (such material development or change in circumstances, an “Intervening Event”), withdraw or modify its recommendation of this Agreement or the Contemplated Transactions if the Seller Board has concluded in good faith, after consultation with its outside counsel, that, without in light of such Intervening Event, its fiduciary obligations require it to take such action; provided that, the Seller Board shall not be entitled to take such action pursuant to this sentence unless Seller has (x) provided to Buyer at least four (4) Business Days’ prior written consent notice advising the Buyer that the Seller Board intends to take such action and specifying the reasons therefor in reasonable detail and (y) during such four (4) Business Day period, if requested by Buyer, provide any information related to the Intervening Event reasonably requested by Buyer and engage in good faith negotiations with Buyer to amend this Agreement in such a manner that obviates the need for taking such action as a result of Spectrumthe Intervening Event. Any Adverse Recommendation Change shall not change the approval of this Agreement or any other approval of the Seller Board, neither nor shall any Adverse Recommendation Change have the effect of causing any state (including Nevada and Delaware) corporate takeover statute or other similar statute to be applicable to the Contemplated Transactions.
(g) From and after the execution of this Agreement, Seller shall notify Buyer promptly (but in any event within twenty-four (24) hours) of the receipt of any Acquisition Proposal or inquiries, discussions, negotiations, proposals or expressions of interest that would be reasonably expected to lead to, an Acquisition Proposal. This notice shall include (i) the identity of the Person or group making any such Acquisition Proposal, request or inquiry, (ii) a copy of all written materials provided by such Person in connection with such Acquisition Proposal, request or inquiry and (iii) a written summary, if it nor is not in writing, of any such Acquisition Proposal, request or inquiry. After receipt of the Acquisition Proposal, request or inquiry, Seller shall keep Buyer informed promptly (but in any event within twenty-four (24) hours) of all material developments regarding the status and material details of any such Acquisition Proposal, request or inquiry (including, but not limited to, notice of all material amendments with respect thereto).
(h) Nothing in this Section 5.15 shall be deemed to prohibit Seller from complying with Rule 14e-2 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act with regard to an Acquisition Proposal if, in the good faith judgment of the board of directors of Seller or a committee thereof, after consultation with its Affiliates outside legal counsel, failing to take such action would be inconsistent with its obligations under applicable Law (it being understood that any such compliance with Rule 14e-2 or Item 1012(a) may constitute an Adverse Recommendation Change). In addition, it is understood and agreed that, for purposes of this Agreement, a factually accurate public statement by Seller that describes Seller’s receipt of an Acquisition Proposal and the operation of this Agreement with respect thereto, or any “stop, look and listen” communication by the Seller Board pursuant to Rule 14d-9(f) of the Exchange Act or any similar communication to the Seller Stockholders, shall not constitute an Adverse Recommendation Change or an approval or recommendation with respect to any Acquisition Proposal.
(i) For purposes of this Agreement, “Superior Proposal” shall mean any bona fide unsolicited written Acquisition Proposal (with all references to 15% in the definition of Acquisition Proposal being treated as references to 50% for these purposes) made by a third party that did not result from a breach of this Section 5.15 that the Seller Board determines in good faith, after consultation with outside legal counsel and financial advisors, is reasonably capable of being consummated, and if consummated would be more favorable from a financial point of view to the Seller Stockholders than the Contemplated Transactions, and all amendments or revisions irrevocably committed to by Buyer pursuant to Section 5.15(e)) taking into account all financial, regulatory, legal and other aspects of such Acquisition Proposal, including, without limitation, the likelihood of consummation.
(j) For purposes of this Agreement, “Acquisition Proposal” means any inquiry, indication of interest, proposal or offer for any transaction or series of related transactions involving (i) a merger, tender offer, recapitalization, reorganization, liquidation, dissolution, business combination or consolidation, or any similar transaction, involving DGLP, Subsidiary or the Business, (ii) a sale, lease, license, exchange, mortgage, pledge, transfer or other acquisition of assets that constitute at least 15% of the Assets, taken as a whole, or (iii) a purchase, directly tender offer or indirectlyother acquisition (including by way of merger, any shares consolidation, stock exchange or otherwise) of Saturn Common Stock beneficial ownership (the term “beneficial ownership” for purposes of this Agreement having the meaning assigned thereto in Section 13(d) of the Exchange Act and the rules and regulations thereunder) of securities representing 15% or securities more of Spectrum convertible into the voting power of DGLP or exchangeable or exercisable for shares of Saturn Common StockSubsidiary; provided, however, that the term “Acquisition Proposal” shall not include the Contemplated Transactions.
Appears in 2 contracts
Sources: Asset Purchase Agreement (LOCAL.COM), Asset Purchase Agreement (DigitalPost Interactive, Inc.)
Non-Solicitation. (a) Except to the extent that the Company or its Board of Directors is permitted to do so under the Merger Agreement, but subject to any limitations imposed on the Company or its Board of Directors under the Merger Agreement, such Stockholder agrees, solely in its capacity as a stockholder of the Company, that it shall not, and shall cause each of its Subsidiaries not to, Affiliates and shall use its reasonable best efforts to cause its and their respective Representatives not authorize to (i) directly or permit indirectly initiate or solicit, or knowingly encourage or knowingly facilitate (including by way of furnishing non-public information relating to the Company or any of its Representatives toSubsidiaries) any inquiries or the making or submission of any proposal that constitutes, directly or indirectly, (i) solicit, initiate or knowingly encourage, induce or facilitate any Acquisition Proposal or any inquiry, proposal or offer that may could reasonably be expected to lead to to, an Acquisition ProposalProposal with respect to the Company, (ii) furnish participate or engage in discussions or negotiations with, or disclose any nonpublic non-public information regarding or data relating to the Company or afford access any of its Subsidiaries, to any Person that has made an Acquisition Proposal with respect to the Company or to any Person in contemplation of making an Acquisition Proposal with respect to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate accept an Acquisition Proposal with respect to the Company or enter into any agreement, including any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement, arrangement or understanding, (A) constituting or related to, or that is intended to or would reasonably be expected to lead to, any Acquisition Proposal with respect to the Company or (B) requiring, intending to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the Integrated Mergers or any other transaction contemplated by the Merger Agreement. Each Stockholder will, and will cause its Affiliates and its and their respective Representatives to, immediately cease and cause to be terminated any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions conducted heretofore with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books Company. Nothing contained in this Section 3(e) shall prevent any Person affiliated with such Stockholder who is a director or records officer of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making designated by such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and as a director of officer of the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (actions in his capacity as a director or inaction) that would not constitute a breach by officer of the Company, if taken by the Company, pursuant to including taking any actions permitted under Section 5.3 5.4 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 2 contracts
Sources: Merger Agreement (Penn Virginia Corp), Merger Agreement (Lonestar Resources US Inc.)
Non-Solicitation. (a) Stockholder shall not, shall cause each of its Subsidiaries not toshall, and shall cause its affiliates and its and its affiliates’ respective directors, officers, employees, investment bankers, legal, financial and other advisors or representatives (collectively, “Stockholder Representatives”) not authorize or permit any of its Representatives to, directly or indirectly, (i) solicit, initiate or initiate, knowingly encourage, or induce the making, submission or facilitate any announcement of, an Acquisition Proposal or any inquiry, proposal or offer that may reasonably be expected to lead to an Acquisition Proposal(as defined in the Merger Agreement), (ii) furnish to any nonpublic person (other than Parent, Merger Sub or any designees of Parent or Merger Sub) any non-public information regarding relating to the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to besubsidiaries, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and or any of its Subsidiaries tosubsidiaries to any person (other than Parent, Merger Sub or any designees of Parent or Merger Sub), or take any other action intended to assist or facilitate any inquiries or the Person making of any proposal that constitutes or group (and their respective Representatives) making such could lead to an Acquisition Proposal, (iii) participate or engage in discussions or negotiations with any person with respect to an Acquisition Proposal, (iv) approve, endorse or recommend an Acquisition Proposal, (v) enter into any letter of intent, memorandum of understanding or other contract contemplating or otherwise relating to an Acquisition Transaction or (vi) terminate, amend or waive any rights under any “standstill” or other similar agreement between the Company or any of its subsidiaries and any person (other than Parent); provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, furtherhowever, that all such information is provided or made available to Spectrum Stockholder may engage in any of the foregoing activities if and the Company (solely to the extent not previously provided or made available) substantially concurrently with it being provided or made available that the Company is permitted to engage in such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, activities pursuant to Section 5.3 6.1 of the Merger Agreement.
(c) Nothing . Stockholder shall immediately cease any and all existing activities, discussions or negotiations with any persons conducted heretofore with respect to any Acquisition Proposal. Without limiting the generality of the foregoing, Stockholder acknowledges and hereby agrees that any violation of the restrictions set forth in this Section 5 by Stockholder or any Stockholder Representatives shall be deemed to be a breach of this Section 5 by Stockholder. Stockholder shall not enter into any letter of intent or similar document or any agreement contemplating or otherwise relating to an Acquisition Proposal unless and until this Agreement shall apply is terminated pursuant to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction)its terms.
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 2 contracts
Sources: Voting Agreement (Micro Linear Corp /Ca/), Voting Agreement (Sirenza Microdevices Inc)
Non-Solicitation. (a) Stockholder Shareholder and its subsidiaries shall not, shall cause each of its Subsidiaries not to, and shall use their best efforts to cause their officers, directors, employees or other agents not authorize or permit any of its Representatives to, directly or indirectly, (i) take any action to solicit, initiate or knowingly encourage, induce or facilitate any Acquisition Proposal or any inquiry, proposal or offer that may reasonably be expected to lead to an Acquisition Proposal, (ii) furnish or disclose any nonpublic information regarding the Company relating to Milan or any of its Subsidiaries or afford access to the Company’s business, properties, assets, books or records of Milan or any of its Subsidiaries to, or otherwise knowingly cooperate in any way with, any Third Party Person that is reasonably expected to makemay be considering making, or is otherwise seeking to make, or has made, an Acquisition Proposal or has agreed to endorse an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party third party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall Shareholder will promptly (but in any event within one (1) Business Day) advise notify the Company and Spectrum upon receipt of any an Acquisition Proposal received or any indication that any Person is considering making an Acquisition Proposal or any request for nonpublic information relating to Milan or any of its Subsidiaries or for access to the properties, books or records of Milan or any of its Subsidiaries by Stockholderany Person that may be considering making, or has made, an Acquisition Proposal and will keep the material terms Company fully informed of the status and conditions details of any such Acquisition Proposal (Proposal, indication or request, including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder indication or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Partyrequest.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 2 contracts
Sources: Shareholder Support Agreement, Shareholder Support Agreement (OncoMed Pharmaceuticals Inc)
Non-Solicitation. (ai) Stockholder Except as otherwise permitted by this Agreement, until the earlier of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 7.1 (Termination), the Company shall not, and shall cause its Subsidiaries and each of its Subsidiaries and their respective directors and officers not to, and shall instruct and use its reasonable best efforts to cause its other Representatives not authorize or permit any of its Representatives to, directly or indirectly, (ia) solicit, initiate or knowingly encourageinitiate, propose, induce or knowingly encourage or knowingly facilitate the making or submission of any Acquisition Proposal offer, inquiry or any inquiryproposal that constitutes, proposal or offer that may could reasonably be expected to lead to to, an Alternative Acquisition Proposal, including by (ii1) furnish providing or furnishing to any nonpublic Person (other than Parent and its Representatives) any non-public information regarding or data relating to the Company, any of its Subsidiaries or their respective businesses, properties or assets and (2) affording access to any personnel of the Company or afford access its Subsidiaries to the Company’s businessany Person (other than Parent and its Representatives), propertiesin each case, assetsin connection with an Alternative Acquisition Proposal; (b) continue, books or records toenter into, engage in or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Person (and their respective Representatives) regarding any Alternative Acquisition Proposal (or inquiries, offers or proposals or any other effort or attempt that could reasonably be expected to lead to an Alternative Acquisition Proposal) (except, in each case, to notify such Person as to the existence of the provisions of this Section 5.5(a)); (c) enter into any agreement with respect to an Alternative Acquisition Proposal (except for confidentiality agreements permitted under Section 5.5(a)(ii)); or (d) agree or resolve to take, or take, any of the actions prohibited by clauses (a), (b) or (c) of this sentence. Subject to Section 5.5(a)(ii), as of the date hereof, the Company shall immediately cease, and cause its Subsidiaries and the Representatives of the Company and its Subsidiaries to immediately cease, any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing.
(ii) Notwithstanding the foregoing in this Section 5.5(a), at any time prior to the receipt of the Requisite Stockholder Approval, if the Company or its Representatives receives an unsolicited bona fide written Alternative Acquisition Proposal from any Third Party that is reasonably expected to make(not resulting from a breach of Section 5.5(a)), or has made, an (i) the Company and its Representatives may contact the Third Party (including its Representatives) making such Alternative Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek Proposal solely to clarify the terms and conditions of any inquirythereof, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (Bii) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (faith, after consultation with outside counsel legal and financial advisors, that such Alternative Acquisition Proposal either constitutes a financial advisor of nationally recognized reputation) to be, Superior Proposal or to would reasonably be reasonably expected to lead to, to a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to then the Company and its Subsidiaries toRepresentatives may: (A) engage in discussions or negotiations with the Third Party (including its Representatives) with respect to such Alternative Acquisition Proposal, and afford access (B) furnish non-public information relating to the business, properties, assets, books Company or records any of the Company and its Subsidiaries to, to the Person or group Third Party making such Alternative Acquisition Proposal (and their respective including its Representatives) making such Acquisition Proposal; providedif, that prior to so furnishing any such information, Stockholder the Third Party has executed a confidentiality agreement with the Company having provisions as to the confidential treatment of information that are not materially less favorable in the aggregate to the Company than the confidentiality provisions of the Confidentiality Agreement; provided that (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions does not contain provisions which prohibit the Company from providing any information to Parent in accordance with this Section 5.5(a)(ii) or that are customary for confidentiality agreements executed in similar circumstances otherwise prohibits the Company from complying with the provisions of this Section 5.5(a)(ii) and (y) the Company provides prior written notice to Spectrum Parent and the Company; provided, further, Merger Sub any non-public information that all such information is provided or to such Third Party that was not previously made available to Spectrum and the Company (Parent or Merger Sub prior to the extent not previously provided or made available) substantially concurrently with the time it being is provided or made available to such Third Party.
Party (b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit and in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transactionevent within 48 hours thereof).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 2 contracts
Sources: Merger Agreement (SP Plus Corp), Merger Agreement (SP Plus Corp)
Non-Solicitation. (a) Stockholder Lambda agrees that, except as expressly contemplated by this Agreement, neither it nor any of the Lambda Subsidiaries shall, and Lambda shall notuse its reasonable best efforts, and shall cause each of its the Lambda Subsidiaries not to use their respective reasonable best efforts to, and shall cause their respective Representatives not authorize or permit any of its Representatives to, directly or indirectly, to (i) directly or indirectly initiate or solicit, initiate or knowingly encourage, induce encourage or knowingly facilitate any Acquisition Proposal (including by way of furnishing non-public information relating to Lambda or any inquiryof the Lambda Subsidiaries) any inquiries or the making or submission of any proposal that constitutes, proposal or offer that may could reasonably be expected to lead to to, an Acquisition ProposalProposal with respect to Lambda, (ii) furnish other than clarifying terms of the Acquisition Proposal in accordance with the penultimate sentence of this Section 5.4(a), participate or engage in discussions or negotiations with, or disclose any nonpublic non-public information regarding or data relating to Lambda or any of the Company Lambda Subsidiaries or afford access to the Company’s business, properties, assets, books or records to, of Lambda or otherwise knowingly cooperate in any way with, of the Lambda Subsidiaries to any Third Party Person that is reasonably expected to make, or is otherwise seeking to make, or has made, made an Acquisition Proposal, Proposal with respect to Lambda or to any Person in contemplation of making an Acquisition Proposal with respect to Lambda or (iii) participate accept an Acquisition Proposal with respect to Lambda or enter into any agreement, including any letter of intent, memorandum of understanding, agreement in any discussions principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or negotiations with any Third Party other similar agreement, arrangement or understanding, (A) constituting or related to, or that is intended to or could reasonably be expected to makelead to, any Acquisition Proposal with respect to Lambda (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 5.4) or (B) requiring, intending to cause, or has madewhich could reasonably be expected to cause Lambda to abandon, an terminate or fail to consummate the Integrated Mergers or any other transaction contemplated by this Agreement (each, a “Lambda Acquisition ProposalAgreement”). Any violation of the foregoing restrictions by the Lambda Subsidiaries or by any Representatives of Lambda who are directors or executive officers of Lambda, regarding an Acquisition Proposal; provided thatwhether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Lambda or otherwise, notwithstanding shall be deemed to be a breach of this Agreement by Lambda. Notwithstanding anything to the contrary in this Agreement, prior to the earlier of (1) delivery of the Requisite Lambda Support Agreements or (2) in the event of a Lambda Stockholder Meeting Election by Pi, the time the Lambda Stockholder Approval is obtained, Lambda and the Lambda Board may take any actions described in clause (ii) in the first sentence of this Section 5.4(a) with respect to a third party if (w) after the date of this Agreement and prior to the earlier of (1) delivery of the Requisite Lambda Support Agreements or (2) in the event of a Lambda Stockholder Meeting Election by Pi, the time the Lambda Stockholder Approval is obtained, Lambda receives a written Acquisition Proposal with respect to Lambda from such Person may third party (Aand such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Lambda or any of the Lambda Subsidiaries or any of their respective Representatives), (x) seek Lambda provides Pi the notice required by Section 5.4(g) with respect to clarify such Acquisition Proposal, (y) the terms Lambda Board determines in good faith (after consultation with Lambda’s financial advisors and conditions of any inquiry, outside legal counsel) that such proposal constitutes or offer to determine whether such inquiry, proposal or offer may could reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to Lambda, and (z) the Lambda Board determines in good faith (after consultation with Lambda’s outside legal counsel) that the failure to participate in such inquiry, proposal discussions or offer negotiations or (y) to disclose such Person’s view information or position data to such third party would be inconsistent with respect theretoits fiduciary duties; provided that Lambda shall not deliver any information to such third party without first entering into an Acceptable Confidentiality Agreement with such third party. Notwithstanding the limitations set forth in this Section 5.4(a) and (B) inform any Person that makes an Acquisition Proposal subject to compliance with Lambda’s obligations contained in Section 5.4(g), if Lambda receives, following the date hereof and prior to the earlier of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity delivery of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder Requisite Lambda Support Agreements or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity2) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that of a Lambda Stockholder receivesMeeting Election by Pi, after the date of this Agreement and prior to obtaining time the ▇▇▇▇▇▇ Lambda Stockholder ApprovalApproval is obtained, a bona fide written Acquisition Proposal that did not result from any a knowing and intentional breach of this Section 3.02 5.4, Lambda and its Representatives may contact the Person or any of such Person’s Representatives who has made such Acquisition Proposal solely to clarify the terms of such Acquisition Proposal so that Lambda may inform itself about such Acquisition Proposal. Nothing contained in this Section 5.4 shall prohibit Lambda or the Lambda Board from taking and disclosing to the Lambda Stockholders a position with respect to an Acquisition Proposal with respect to Lambda pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law.
(b) Neither (i) the Lambda Board nor any committee thereof shall directly or indirectly (A) withhold or withdraw (or amend, modify or qualify in a manner adverse to Pi, Merger Sub Inc. or Merger Sub LLC), or publicly propose or announce any intention to withhold or withdraw (or amend, modify or qualify in a manner adverse to Pi, Merger Sub Inc. or Merger Sub LLC), the Lambda Recommendation or (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Acquisition Proposal with respect to Lambda (any action described in this clause (i) being referred to as a “Lambda Adverse Recommendation Change”) nor (ii) shall Lambda or any of the Lambda Subsidiaries execute or enter into a Lambda Acquisition Agreement. Notwithstanding the foregoing, at any time prior to obtaining the Lambda Stockholder Approval, and subject to Lambda’s compliance in all material respects at all times with the provisions of this Section 5.4 and Section 5.3, in response to a Superior Proposal with respect to Lambda that was not initiated, solicited, knowingly encouraged or knowingly facilitated by Lambda or any of the Lambda Subsidiaries or any of their respective Representatives, the Lambda Board may make a Lambda Adverse Recommendation Change; provided, however, that Lambda shall not be entitled to exercise its right to make a Lambda Adverse Recommendation Change in response to a Superior Proposal with respect to Lambda (x) until three (3) Business Days after Lambda provides written notice to Pi (a “Lambda Notice”) advising Pi that the board Lambda Board or a committee thereof has received a Superior Proposal, specifying the material terms and conditions of directors such Superior Proposal, and identifying the Person or group making such Superior Proposal, (y) if during such three (3) Business Day period, Pi proposes any alternative transaction (including any modifications to the terms of this Agreement), unless the Company Lambda Board determines in good faith (after consultation with Lambda’s financial advisors and outside counsel legal counsel, and taking into account all financial, legal, and regulatory terms and conditions of such alternative transaction proposal, including any conditions to and expected timing of consummation, and any risks of non-consummation of such alternative transaction proposal) that such alternative transaction proposal is not at least as favorable to Lambda and its stockholders as the Superior Proposal (it being understood that any change in the financial or other material terms of a Superior Proposal shall require a new Lambda Notice and a financial advisor of nationally recognized reputationnew two (2) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1Business Day period under this Section 5.4(b)) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (yz) provides prior written notice unless the Lambda Board, after consultation with outside legal counsel, determines that the failure to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently make a Lambda Adverse Recommendation Change would be inconsistent with it being provided or made available to such Third Partyits fiduciary duties.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 2 contracts
Sources: Merger Agreement (Penn Virginia Corp), Merger Agreement (Lonestar Resources US Inc.)
Non-Solicitation. (a) Stockholder No Solicitation or Negotiation. Subject to any actions which Allergan is required to take so as to comply with the requirements of the Takeover Rules, from the date of this Agreement until the earlier of Effective Time and the valid termination of this Agreement pursuant to and in accordance with Article 9, except as otherwise set forth in this Section 5.3, Allergan shall not, and it shall cause each of its Subsidiaries and its and their respective directors, officers and employees not to, and it shall use reasonable best efforts to cause its and its Subsidiaries’ other Representatives not authorize or permit any of its Representatives to, directly or indirectly, :
(i) solicit, initiate or take any action to knowingly encourage, induce facilitate or facilitate knowingly encourage (including by way of furnishing information to any Acquisition Person in connection with) the submission of any Allergan Alternative Proposal or any inquiryindication, proposal or offer inquiry that may would reasonably be expected to lead to an Acquisition Allergan Alternative Proposal, ;
(ii) furnish any nonpublic information regarding the Company enter into or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with with, furnish any Third Party that is reasonably expected information relating to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder Allergan or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to beto, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and Allergan or any of its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit otherwise cooperate in any way a change with, or knowingly assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that would reasonably be expected to seek to make, or has made, an Allergan Alternative Proposal (except to notify such Person as to the existence of control the provisions of Stockholder this Section 5.3);
(or Stockholder’s ultimate publicly traded parent company, as applicableiii) (whether A) withdraw or qualify, amend or modify in any manner adverse to AbbVie, the Scheme Recommendation or the recommendation contemplated by virtue Section 3.6(c), if applicable, (B) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement, (C) recommend, adopt or approve or publicly propose to recommend, adopt or approve any Allergan Alternative Proposal or (D) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14e-2(a) under the Exchange Act with regard to an Allergan Alternative Proposal or in connection with such action by the close of a mergerbusiness on the 10th Business Day after the commencement of such Allergan Alternative Proposal under Rule 14e-2(a) (any of the foregoing in this clause (iii), an “Allergan Change of Recommendation”);
(iv) take any action to make any “moratorium”, “control share acquisition”, consolidation “fair price”, “supermajority”, “affiliate transactions” or “business combination statute or regulation” or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor anti-takeover laws and regulations under applicable Law inapplicable to any of its Affiliates shall purchase, directly Third Party or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.Allergan Alternative Proposal; or
Appears in 2 contracts
Sources: Transaction Agreement, Transaction Agreement
Non-Solicitation. (a) Stockholder 7.2.1 Except as otherwise expressly provided in this Section 7.2, Moto shall not, shall cause each of its Subsidiaries not to, and shall not authorize or permit any of its Representatives to, directly or indirectly, through any officer, director, employee, representative (including any financial or other advisor) or agent of Moto or any of its subsidiaries (collectively, the “Representatives”), (i) solicit, initiate or initiate, knowingly encourage, induce encourage or facilitate (including by way of furnishing information or entering into any Acquisition Proposal form of agreement, arrangement or understanding) the initiation of any inquiry, proposal inquiries or offer that may reasonably be expected to lead to proposals regarding an Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, person (other than Randgold or has made, any of its affiliates) regarding an Acquisition Proposal, regarding (iii) approve, accept, endorse or recommend, or propose publicly to accept, approve, endorse or recommend, any Acquisition Proposal, (iv) accept or enter into or publicly propose to accept or enter into, any agreement, understanding or arrangement or other contract in respect of an Acquisition Proposal; Proposal or (v) make a Change in Recommendation.
7.2.2 Except as otherwise provided that, notwithstanding anything to the contrary in this AgreementSection 7.2, Moto shall, and shall cause its subsidiaries and Representatives to immediately cease and cause to be terminated any such Person may (A) seek to clarify the terms and conditions of any inquirysolicitation, proposal encouragement, discussion or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications negotiation with any such Third Party shall be limited to the clarification of the original inquiry persons conducted heretofore by Moto, its subsidiaries or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions Representatives with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by StockholderProposal, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoingand, it is agreed thatin connection therewith, if any Representative of Stockholder or Moto will discontinue access to any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized confidential information (and not establish or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or allow access to any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to beconfidential information, or to be reasonably expected to lead toany data room, a Superior Proposalvirtual or otherwise) and shall as soon as possible request, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not that it is entitled to do so (and exercise all rights it has to require) the return or destruction of all confidential information regarding Moto and its subsidiaries previously provided to any such person or made availableany other person and will request (and exercise all rights it has to require) substantially concurrently with it being provided the destruction of all material including or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit incorporating or limit Stockholder from taking otherwise reflecting any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder material confidential information regarding Moto and its subsidiaries. Moto agrees that, without the prior written consent of Spectrum, except as permitted Section 7.2.3 neither it nor any of its Affiliates subsidiaries, shall purchaseterminate, directly waive, amend or indirectlymodify any provision of any existing confidentiality agreement relating to an Acquisition Proposal or any standstill agreement to which it or any of its subsidiaries is a party (it being acknowledged and agreed that the automatic termination of any standstill provisions of any such agreement as the result of the entering into and announcement of this Agreement by Moto, pursuant to the express terms of any shares such agreement, shall not be a violation of Saturn Common Stock this Section 7.2.2) and Moto undertakes to enforce all standstill, non-disclosure, non-disturbance, non-solicitation and similar covenants that it or securities any of Spectrum convertible its subsidiaries have entered into or exchangeable or exercisable for shares of Saturn Common Stockprior to the date hereof.
Appears in 2 contracts
Sources: Arrangement Agreement (Randgold Resources LTD), Arrangement Agreement (Randgold Resources LTD)
Non-Solicitation. (a) Subject to Section 7 hereof, during the Term, each Stockholder hereby agrees that such Stockholder shall not, and shall cause each of its Subsidiaries Affiliates, representatives and agents (including its investment bankers, attorneys and accountants) (collectively, its “Representatives”) not to, and shall not authorize or permit any of its Representatives to, directly or indirectly, (i) initiate, solicit, initiate cause, or knowingly encourage, induce facilitate or facilitate encourage any Acquisition Proposal inquiries or the making of any inquiry, proposal or offer that may constitutes, or could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Takeover Proposal, or (iiiii) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other person any non-public information, or afford any other person with access to the business, employees, officers, contracts, properties, assets, or books and records of the Company or its Subsidiaries, in each case in connection with, or that could reasonably be expected to lead to, a Takeover Proposal. Each Stockholder shall immediately cease any inquiries, solicitation, encouragement, discussions or negotiations with any Third Party persons with respect to a Takeover Proposal (or that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may could reasonably be expected to lead to a Superior Proposal (it being understood Takeover Proposal) that any such communications with any such Third Party shall be limited existed on or prior to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions date of this Section 3.02Agreement. Each Stockholder shall promptly (but and in any event within one twenty-four (124) Business Dayhours) advise notify Purchaser in the Company event that such Stockholder or any of its Affiliates or Representatives receives a Takeover Proposal and Spectrum shall provide Purchaser with a copy of any Acquisition such Takeover Proposal received by Stockholder, (if in writing) and disclose to Purchaser the material terms and conditions of any such Acquisition Takeover Proposal, the identity of the person or group of persons making such Takeover Proposal and any arrangements with such Stockholder or its Affiliates contemplated thereby, and such Stockholder shall keep Purchaser reasonably informed on a prompt basis (and in any event within twenty-four (24) hours) of the status and terms of any such discussions or negotiations and any material developments with respect to any such Takeover Proposal (including any material amendments, modifications or other changes thereto); provided that compliance by the Company with its obligations set out in Section 5.02(c) and the identity of the Person making any Merger Agreement in respect of such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative Takeover Proposal shall satisfy each Stockholder’s obligations in respect of Stockholder or any of its Subsidiaries takes any action that would constitute a breach this final sentence of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach 3(b) of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 2 contracts
Sources: Voting Agreement (RealD Inc.), Voting Agreement (Lewis Michael V)
Non-Solicitation. (a) Stockholder Shellbridge shall immediately cease and cause to be terminated all existing discussions and negotiations (including, without limitation, through any of its officers, directors, employees, advisors, representatives and agents on its behalf (“Representatives”)), if any, with any parties initiated before the date of this agreement with respect to any Acquisition Proposal (as hereinafter defined) and shall immediately request the return or destruction of all information provided to any third parties which have entered into a confidentiality agreement with Shellbridge relating to an Acquisition Proposal and shall use all reasonable commercial efforts to ensure that such requests are honoured.
(b) Shellbridge shall not, shall cause each of its Subsidiaries not todirectly or indirectly, and shall not do or authorize or permit any of its Representatives to, directly or indirectly, do, any of the following:
(i) solicit, facilitate, initiate or knowingly encourageencourage (including, induce without limitation, by way of furnishing information or entering into any form of agreement, arrangement or understanding) or take any action to solicit, facilitate or encourage any Acquisition Proposal inquiry or communication or the making of any inquiry, proposal or offer that to Shellbridge or its shareholders from any person which constitutes, or may reasonably be expected to lead to (in either case whether in one transaction or a series of transactions): (i) an acquisition from Shellbridge or its shareholders of any securities of Shellbridge (other than on exercise of currently outstanding Shellbridge Options); (ii) any acquisition of a significant amount of assets of Shellbridge; (iii) an amalgamation, arrangement, merger, or consolidation involving Shellbridge; or (iv) any take-over bid, issuer bid, exchange offer, recapitalization, liquidation, dissolution, reorganization into a royalty trust or income fund or similar transaction involving Shellbridge or any other transaction, the consummation of which would or could reasonably be expected to impede, interfere with, prevent or delay the transactions contemplated by this agreement or which would or could reasonably be expected to materially reduce the benefits to the other party hereto under this Agreement (any such inquiry or proposal in respect of any of the foregoing being an “Acquisition Proposal”);
(ii) enter into or participate in any negotiations or discussions regarding an Acquisition Proposal, (ii) or furnish to any nonpublic other person any information regarding the Company or afford access with respect to the Company’s its business, properties, assetsoperations, books prospects or records to, conditions (financial or otherwise) in connection with an Acquisition Proposal or otherwise knowingly cooperate in any way with, or assist or participate in, facilitate or encourage, any Third Party that is reasonably expected effort or attempt of any other person to makedo or seek to do any of the foregoing;
(iii) waive, or is otherwise seeking to makeforbear in the enforcement of, or has madeenter into or participate in any discussions, negotiations or agreements to waive or otherwise forbear in respect of, any rights or other benefits of Shellbridge under confidential information agreements, including, without limitation, any “standstill provisions” thereunder; or
(iv) accept, recommend, approve or enter into an agreement to implement an Acquisition Proposal, provided, however, that notwithstanding any other provision hereof, Shellbridge and its Representatives may:
(v) enter into or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquirya third party who (without any solicitation, proposal initiation or offer encouragement, directly or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receivesindirectly, after the date of this agreement, by Shellbridge or any of its Representatives) seeks to initiate such negotiations or discussions and, subject to execution of a confidentiality agreement substantially similar to the Shellbridge Confidentiality Agreement (provided that such confidentiality agreement shall provide for disclosure thereof (along with all information provided thereunder) to True as set out below), may furnish to such third party information concerning Shellbridge and prior its business, properties and assets, in each case if, and only to obtaining the ▇▇▇▇▇▇ Stockholder Approval, extent that:
(A) the third party has first made a written bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that to Shellbridge which the board of directors of the Company Shellbridge determines in good faith faith: (1) that funds or other consideration necessary for the Acquisition Proposal are or are likely to be available; (2) (after consultation with its financial advisor) would, if consummated in accordance with its terms, result in a transaction financially superior for Shellbridge Shareholders than the Arrangement; and (3) after receiving the advice of outside counsel as reflected in minutes of the board of directors of Shellbridge, that the taking of such action is necessary for the board of directors of Shellbridge in discharge of its fiduciary duties under applicable laws (a “Superior Proposal”); and
(B) prior to furnishing such information to or entering into or participating in any such negotiations or discussions with such third party, Shellbridge provides prompt notice to True to the effect that it is furnishing information to or entering into or participating in negotiations or discussions with such person or entity together with a copy of the confidentiality agreement referenced above and if not previously provided to True, copies of all information provided to such third party concurrently with the provision of such information to such third party, and provided further that, Shellbridge shall notify True orally and in writing of any inquiries, offers or proposals with respect to a financial advisor Superior Proposal (which written notice shall include, without limitation, a copy of nationally recognized reputationsuch proposal (and any amendments or supplements thereto), the identity of the person making it, if not previously provided to the other party, copies of all information provided to such party and all other information reasonably requested by the other party), within 24 hours of the receipt thereof, shall keep the other party informed of the status and details of any such inquiry, offer or proposal and answer the other party’s questions with respect thereto; and
(C) Shellbridge provides to beTrue in writing the determination of the board of directors of Shellbridge forthwith upon determining that the Acquisition Proposal, or to be reasonably expected to lead toif completed, would constitute a Superior Proposal, Stockholder may ;
(1vi) engage in negotiations with, furnish any information comply with Section 172 of the Securities Act (Alberta) and similar provisions under applicable Canadian securities laws relating to the provision of directors’ circulars and make appropriate disclosure with respect thereto to its shareholders; and
(vii) accept, recommend, approve or enter into an agreement to implement a Superior Proposal from a third party, but only if prior to such acceptance, recommendation, approval or implementation, the Company board of directors of Shellbridge shall have concluded in good faith, after considering all proposals to adjust the terms and its Subsidiaries to, conditions of this agreement as contemplated by section 3.2(c) and afford access to after receiving the business, properties, assets, books or records advice of outside counsel as reflected in the minutes of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; providedboard of directors of Shellbridge, that prior the taking of such action is necessary for the board of directors of Shellbridge in discharge of its fiduciary duties under applicable laws and Shellbridge complies with its obligations set forth in section 3.2(c) and terminates this agreement in accordance with section 9.2(c)(vi) and concurrently therewith pays the amount required by section 6.1 to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger AgreementTrue.
(c) Nothing set forth If Shellbridge receives a Superior Proposal, Shellbridge shall give the Trust and True, orally and in writing, at least 72 hours advance notice of any decision by the board of directors of Shellbridge to accept, recommend, approve or enter into an agreement to implement a Superior Proposal, which notice shall include a summary of the details of the Superior Proposal including the identity of the third party making the Superior Proposal. During such 72 hour period, Shellbridge agrees not to accept, recommend, approve or enter into any agreement to implement such Superior Proposal and not to release the party making the Superior Proposal from any standstill provisions and shall not withdraw, redefine, modify or change its recommendation in respect of the Arrangement. In addition, during such 72 hour period Shellbridge shall and shall cause its financial and legal advisors to, negotiate in good faith with the Trust and True and its financial and legal advisors to make such adjustments in the terms and conditions of this Agreement agreement and the Arrangement as would enable Shellbridge to proceed with the Arrangement as amended rather than the Superior Proposal. In the event the Trust and True propose to amend this agreement and the Arrangement to provide that the Shellbridge Shareholders shall apply receive a value per Shellbridge Share equal to or limit greater than the value per Shellbridge Share provided in the Superior Proposal and so advises Shellbridge prior to the expiry of such 72 hour period, the board of directors of Shellbridge shall not accept, recommend, approve or enter into any way a agreement to implement such Superior Proposal and shall not release the party making the Superior Proposal from any standstill provisions and shall not withdraw, redefine, modify or change its recommendation in respect of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction)the Arrangement.
(d) Stockholder agrees that, without The Trust and True agree that all information that may be provided to it by Shellbridge with respect to any Superior Proposal pursuant hereto shall be treated as if it were “Confidential Information” as provided pursuant to the prior written consent terms of Spectrum, neither it nor any the Shellbridge Confidentiality Agreement and shall not be disclosed or used except in accordance with the provisions of the Shellbridge Confidentiality Agreement or in order to enforce its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stockrights under this agreement in legal proceedings.
Appears in 2 contracts
Sources: Arrangement Agreement (True Energy Trust), Arrangement Agreement (True Energy Trust)
Non-Solicitation. (a) Stockholder Target agrees with Buyer that (except to the extent Buyer has otherwise consented in writing) until this Agreement is terminated:
(i) Target shall not, immediately cease and cause to be terminated and shall cause each of its Subsidiaries not to, to immediately cease and cause to be terminated any existing discussions or negotiations with any Person (other than Buyer) with respect to any Alternative Proposal;
(ii) Target shall not authorize waive or permit vary any terms or conditions of any confidentiality or standstill agreements that it entered into with any Persons that were considering any Alternative Proposal;
(iii) Target shall close all data or information rooms previously maintained regarding Target in order to solicit bids or expressions of interest in relation to Target or its Representatives to, Properties or assets and request the return or destruction of all confidential information from such parties; and
(iv) None of Target or its Subsidiaries shall (directly or indirectly, (ithrough investment bankers or otherwise) solicit, initiate or knowingly encourageencourage submission of proposals or offers from any Person relating to, induce or facilitate any Acquisition Proposal or any inquiry, proposal or offer that may could reasonably be expected to lead to, or facilitating or encouraging any effort or attempt with respect to, any Alternative Proposal or participate in any negotiations regarding, or furnish to an Acquisition Proposal, (ii) furnish any nonpublic other Person any information regarding the Company or afford access to the Company’s business, properties, assets, books or records with respect to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, assist or has made, an Acquisition Proposal, or (iii) participate in or enter into any discussions or negotiations with agreement relating to, any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Alternative Proposal; provided provided, however, that, notwithstanding anything prior to the contrary Extraordinary General Meeting, Target may, in this Agreement, any such Person may (A) seek response to clarify the terms and conditions of any inquiry, an unsolicited written proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person an Alternative Proposal from a third party that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute did not result from a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 5.2 and that the board Board of directors Directors of the Company determines Target determines, in its good faith (and reasonable judgment, and after consultation with outside counsel and the receipt of a financial advisor written opinion of nationally recognized reputation) to bethe Financial Advisor, or to be reasonably expected to lead to, that such proposal is a Superior Proposal, Stockholder may (1) engage in negotiations withenter into a customary confidentiality agreement, furnish any information with respect to the Company and its Subsidiaries to, and afford access negotiate, explore or otherwise engage in substantive discussions with, such third party, but only if the Board of Directors of Target determines, in its good faith and reasonable judgment after consultation with and the receipt of a written opinion from its outside legal counsel, that taking such action is required to comply with the business, properties, assets, books or records fiduciary duties of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third PartyBoard of Directors of Target under applicable Law.
(b) Notwithstanding anything herein to the contrary, Except as expressly permitted by this Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum5.2, neither it the Board of Directors of Target nor any of its Affiliates committee thereof shall purchase(i) withdraw or modify, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.propose publicly
Appears in 2 contracts
Sources: Arrangement Agreement (Global Election Systems Inc), Arrangement Agreement (Global Election Systems Inc)
Non-Solicitation. (a) Stockholder On and after the date hereof until the date upon which this Agreement is terminated, and except as otherwise expressly provided in this Section 7.1, Target shall not, shall cause each of its Subsidiaries not to, and shall not authorize or permit any of its Representatives to, directly or indirectly, or through any of its Representatives, and shall cause its subsidiaries and their Representatives not to:
(i) solicit, initiate or knowingly encourageinitiate, induce encourage or facilitate (including by way of furnishing information or entering into any Acquisition Proposal form of agreement, arrangement or understanding) any inquiry, proposal inquiries or offer that may reasonably be expected to lead to proposals whatsoever which would constitute an Acquisition Proposal, ;
(ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to makePerson (other than Acquiror, any of its affiliates or has made, an Acquisition Proposal, its or their Representatives) regarding an Acquisition Proposal; provided that;
(iii) approve, notwithstanding anything accept, endorse or recommend, or propose publicly to the contrary in this Agreementaccept, approve, endorse or recommend, any such Person may Acquisition Proposal;
(iv) accept or enter into or publicly propose to accept or enter into, any agreement, understanding or arrangement or other contract in respect of an Acquisition Proposal; or
(v) make a Change in Recommendation, unless (A) seek it does not relate to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior an Acquisition Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform in the opinion of the Target Board, acting in good faith and after receiving advice from its outside financial advisors and outside legal counsel, the Target Board is required to make a Change in Recommendation in order to comply with the fiduciary duties of such directors under applicable Law.
(b) Except as otherwise provided in this Section 7.1, Target shall, and shall cause its subsidiaries and its and their Representatives to, immediately cease and cause to be terminated any Person that makes an solicitation, encouragement, discussion or negotiation with any Persons (other than Acquiror and its Representatives) conducted heretofore by Target, its subsidiaries or its or their Representatives with respect to any potential Acquisition Proposal and, in connection therewith, Target will discontinue access to any of its confidential information (and not establish or allow access to any of its confidential information, or any data room, virtual or otherwise) and shall as soon as possible request, to the restrictions imposed extent that it is entitled to do so (and exercise all rights it has to require) the return or destruction of all confidential information (including all material including or incorporating or otherwise reflecting any material confidential information) regarding Target and its subsidiaries previously provided to any such Person or any other Person. Target agrees that, except as permitted by the provisions Section 7.1(c), neither it nor any of this Section 3.02. Stockholder its subsidiaries shall promptly (but in terminate, waive, amend or modify any event within one (1) Business Day) advise the Company and Spectrum provision of any existing confidentiality agreement relating to a potential Acquisition Proposal received by Stockholder, the material terms and conditions of or any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, standstill agreement to which it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes subsidiaries is a party (it being acknowledged and agreed that the automatic termination of any action that would constitute standstill provisions of any such agreement as the result of the entering into and announcement of this Agreement by Target, pursuant to the express terms of any such agreement, shall not be a breach violation of this Section 3.02 if 7.1(c)) and Target undertakes to enforce all standstill, non-disclosure, non-disturbance, non-solicitation and similar covenants that it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiariessubsidiaries have entered into prior to the date hereof; provided, unless such Representative has agreed (in any capacity) in however, that the foregoing shall not prevent the Target Board from considering an Acquisition Proposal that is reasonably likely to be a writing enforceable Superior Proposal and accepting a Superior Proposal that might be made by such party not to take any such action. third party if the remaining provisions of this Agreement have been complied with.
(c) Notwithstanding the restrictions set forth above in Sections 7.1(a) and 7.1(b) and any other provision of this Section 3.02(a)Agreement or of any other agreement between Acquiror and Target, in the event that Stockholder receives, after if at any time following the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder ApprovalTarget Shareholder Approval of the Arrangement Resolution at the Target Meeting, Target receives a bona fide written Acquisition Proposal (that did was not result from any breach solicited after the date hereof in contravention of this Section 3.02 7.1(a) and provided that Target is in compliance with Sections 7.1(b) and 7.1(a)), the Target Board may (directly or through its advisors or Representatives):
(i) if it believes, acting in good faith, that the board Acquisition Proposal could reasonably be a Superior Proposal, contact the Person(s) making such Acquisition Proposal and its advisors solely for the purpose of directors clarifying such Acquisition Proposal and any material terms thereof and the conditions thereto and likelihood of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) consummation so as to determine whether such proposal is, or is reasonably likely to be, or to be reasonably expected to lead to, a Superior Proposal; and
(ii) if, Stockholder may in the opinion of the Target Board, acting in good faith and after receiving advice from its outside financial advisors and outside legal counsel, the Acquisition Proposal constitutes or, if consummated in accordance with its terms (1disregarding, for the purposes of any such determination, any term of such Acquisition Proposal that provides for a due diligence investigation), would be a Superior Proposal, then, and only in such case, Target may:
(A) engage in negotiations with, furnish any information with respect to the Company Target and its Subsidiaries to, and afford access subsidiaries to the business, properties, assets, books Person making such Acquisition Proposal for a period of not more than 21 days; and/or
(B) participate in discussions or records of the Company and its Subsidiaries tonegotiations with, the Person or group (and their respective Representatives) making such Acquisition Proposal; providedand/or
(C) waive any standstill provision or agreement that would otherwise prohibit such person from making an Acquisition Proposal, provided that prior Target shall not, and shall not allow its Representatives to, disclose any non-public information with respect to furnishing any such information, Stockholder (x) receives from Target to such Person (i) if such non-public information has not been previously provided to, or group an executed is not concurrently provided to, Acquiror; (ii) without entering into a confidentiality and standstill agreement (if one has not already been entered into) which is customary in such situations and which is no less favourable to Target and no more favourable to the counterparty than the confidentiality and standstill provisions contained in the Confidentiality Agreement; and (iii) without providing a copy of such confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third PartyAcquiror.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 2 contracts
Sources: Arrangement Agreement (Newmont Mining Corp /De/), Arrangement Agreement (Fronteer Gold Inc)
Non-Solicitation. (a) Stockholder Except as expressly permitted by Section 5.6(b):
(i) the Company shall, and shall cause its Subsidiaries to, use its reasonable best efforts to cause its directors, officers, employees, investment bankers, attorneys, accountants and other advisors or representatives (such directors, officers, employees, investment bankers, attorneys, accountants, other advisors and representatives, collectively, “Representatives”) to immediately cease any existing solicitations, discussions or negotiations with any persons that may be ongoing with respect to any Acquisition Proposals or any proposal reasonably likely to result in an Acquisition Proposal (and the Company shall request that all copies of all nonpublic information it or its Subsidiaries or their respective Representatives have distributed or made available since the date hereof to persons in connection with their consideration of any Acquisition Proposal, be promptly destroyed or returned to the Company (subject to the exceptions set forth in any applicable confidentiality agreement)) and cause any physical or virtual data room to no longer be accessible to or by any person other than Parent and its Affiliates; and
(ii) from the date hereof until the earlier to occur of the Effective Time or the termination of this Agreement pursuant to Section 7.1, the Company and its Subsidiaries shall not, and the Company shall use its reasonable best efforts to cause each of its Subsidiaries not to, and shall not authorize or permit any of its Representatives not to, directly or indirectly, (iA) solicitinitiate, initiate solicit or knowingly encourage, induce facilitate or facilitate assist the making of any Acquisition Proposal or any inquiry, proposal or offer that constitutes, or may reasonably be expected to lead to to, an Acquisition Proposal, (iiB) furnish engage in, continue or otherwise participate in any nonpublic information discussions or negotiations regarding the Company any proposal or afford access to the Company’s business, properties, assets, books or records tooffer that constitutes, or otherwise knowingly cooperate in any way with, any Third Party that is may reasonably be expected to make, or is otherwise seeking to make, or has madelead to, an Acquisition Proposal, or provide any nonpublic information or data to any person relating to the Company or any of its Subsidiaries, or afford to any such person access to the business, properties, assets or personnel of the Company or any of its Subsidiaries, (iiiC) enter into any other acquisition agreement, merger agreement or similar definitive agreement, letter of intent or agreement in principle with respect thereto or any other agreement relating to an Acquisition Proposal (an “Alternative Acquisition Agreement”) or (D) otherwise knowingly facilitate any effort or attempt to make an Acquisition Proposal, other than, in each case, to request information from the person making any such proposal or offer for the sole purpose of the Company Board or any committee thereof informing itself about the proposal or offer that has been made and the person that made it or to notify any person of the Company’s obligations under this Section 5.6.
(b) From and after the date of this Agreement, the Company shall promptly notify Parent orally (and then in writing within 48 hours) after it or any of its Subsidiaries has received any request for discussions or negotiations, any request for access to the properties or books and records of the Company or any of its Subsidiaries of which the Company or any of its Subsidiaries or any of their respective Representatives is or has become aware, or any request for information relating to the Company or any of its Subsidiaries, in each case, in connection with an Acquisition Proposal or any proposal or offer relating to or constituting an Acquisition Proposal or a potential Acquisition Proposal or any amendments to the financial or material terms of the foregoing. Such notice to Parent shall indicate the identity of the person making such proposal or request and the material terms and conditions of such proposal, if any. The Company shall keep Parent reasonably informed on a current basis (and in any event within 48 hours) of the status of any material developments, discussions or negotiations regarding any such Acquisition Proposal or any change to the financial or material terms of any such Acquisition Proposal, including by providing a copy, if applicable, of any written requests, proposals or offers, including proposed agreements, regarding any such Acquisition Proposal within 24 hours after the receipt thereof. Notwithstanding Section 5.6(a) but subject to complying with Section 5.6(a), if, before the time the Requisite Shareholder Approval is obtained, the Company receives an Acquisition Proposal from any person that did not result from a breach of any provision of this Section 5.6 and that the Company Board or any committee thereof determines in good faith, after consultation with its financial advisors and outside legal counsel, constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal:
(i) the Company and its Representatives may provide access and nonpublic information with regard to the Company and its Subsidiaries in response to a request therefor by such person if the Company receives from such person (or has received from such person) an executed Acceptable Confidentiality Agreement (a copy of which the Company shall promptly (but in any event, within 48 hours) provide to Parent following execution thereof), provided, that the Company shall promptly (but in any event, within 48 hours) make available to Parent any nonpublic information concerning the Company or its Subsidiaries that is provided to any person given such access that was not previously made available to Parent, and
(ii) the Company and its Representatives may engage or participate in any discussions or negotiations with such person.
(c) Except as set forth in this Section 5.6(c), neither the Company Board nor any Third Party committee thereof shall withhold, withdraw, qualify, change, amend or modify (or publicly propose or resolve to withhold, withdraw, qualify, change, amend or modify), in any manner adverse to Parent, the recommendation of the Company Board with respect to the Merger (the “Company Recommendation”), make any public statement in connection with the Company Recommendation or in reference to an Acquisition Proposal that is reasonably expected inconsistent with the Company Recommendation and in any manner adverse to makeParent, or has madefail to include the Company Recommendation in the Proxy Statement, or adopt, approve or recommend or otherwise declare advisable (publicly or otherwise), or propose to adopt, approve or recommend (publicly or otherwise) an Acquisition Proposal, regarding or cause or permit the Company to enter into any Alternative Acquisition Agreement, or fail to make or reaffirm the Company Recommendation within five Business Days following Parent’s written request to do so following receipt of an Acquisition Proposal; provided that, notwithstanding provided, that Parent may only make such request once per Acquisition Proposal (any of the foregoing, a “Change of Recommendation”). Notwithstanding anything to the contrary set forth in this Agreement, before the time the Requisite Shareholder Approval is obtained, the Company Board or any committee thereof may effect a Change of Recommendation and terminate this Agreement pursuant to Section 7.1(f) and enter into an Alternative Acquisition Agreement, if the Company receives an Acquisition Proposal that is a binding, written offer capable of acceptance that the Company Board determines in good faith, after consultation with its financial advisors and outside counsel, constitutes a Superior Proposal, provided, that, the Company may effect a Change of Recommendation and terminate this Agreement to enter into a definitive agreement with respect to a Superior Proposal if:
(i) the Company Board determines in good faith, after consultation with its financial advisors and outside counsel, that failure to take such Person may action would be inconsistent with its fiduciary obligations under applicable Law and the Company shall have complied with its obligations under this Section 5.6;
(Aii) seek the Company has provided prior written notice to clarify Parent, at least five Business Days in advance of making such Change of Recommendation or such termination (such period, the “Negotiation Period”), advising Parent of the intention to effect a Change of Recommendation or terminate this Agreement pursuant to Section 7.1(f), which notice shall include the basis for the Change of Recommendation or termination and the identity of the party making such Superior Proposal and the material terms thereof and include copies of the final forms of all material relevant documents relating to such Superior Proposal;
(iii) during the Negotiation Period, the Company has negotiated, and has caused its Representatives to negotiate, with Parent and Merger Sub in good faith with respect to any changes to the terms and conditions of this Agreement or the transactions contemplated hereby proposed by Parent and Merger Sub (or as to other proposals made by Parent); and
(iv) after so negotiating with Parent and Merger Sub during the Negotiation Period, the Company Board has considered in good faith any inquiryand all changes to this Agreement and the transactions contemplated hereby offered by Parent (or other proposals made by Parent), proposal or offer and has determined, after consultation with its financial advisors and outside legal counsel, that such Superior Proposal would continue to determine whether such inquiry, proposal or offer may reasonably be expected to lead to constitute a Superior Proposal (it being understood even if such changes or other proposals were to be given effect, provided, that, if any material amendment or revision is made to the Acquisition Proposal that any such communications with any such Third Party the Company Board has determined to be a Superior Proposal, the Company shall be limited required to deliver a new written notice to Parent with respect to each successive such amendment or revision and to comply with the clarification requirements of the original inquiry or proposal made by such Third Party and shall not include this Section 5.6 (xincluding Section 5.6(d)) any negotiations or similar discussions with respect to such inquirynew written notice and a new Negotiation Period shall recommence.
(d) Nothing contained in this Section 5.6 shall be deemed to prohibit the Company or the Company Board or any committee thereof from (i) complying with its disclosure obligations under U.S. federal or state Law with regard to an Acquisition Proposal, proposal including taking and disclosing to its shareholders any position or offer information contemplated by Rule 14d-9 or Rule 14e-2(a) under the Exchange Act, and to the extent referred to therein, Item 1012(a) of Regulation M-A under the Exchange Act with respect to an Acquisition Proposal, or (yii) making any “stop-look-and-listen” communication to the shareholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act; provided, however, that any such Person’s view disclosure (other than a “stop, look and listen” communication or position with respect theretosimilar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) that has the substantive effect of withholding, withdrawing, modifying or qualifying in any manner adverse to the Company Recommendation shall be deemed for all purposes of this Agreement to be a Change of Recommendation unless the Company Board expressly publicly reaffirms the Company Recommendation within three Business Days following any written request by Parent.
(e) No Change of Recommendation shall change the approval of the Company Board for purposes of Section 55-11-01 of the NCBCA or any Takeover Statute.
(f) The Company acknowledges and (B) inform agrees that any Person that makes an Acquisition Proposal violation of the restrictions imposed by the provisions of set forth in this Section 3.02. Stockholder shall promptly (but in 5.6 by any event within one (1) Business Day) advise Representatives of the Company and Spectrum of or any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity Subsidiary of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder Company or any of its Subsidiaries takes any action that would constitute their respective Representatives shall be deemed to be a breach of this Section 3.02 if it were authorized or permitted 5.6 by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(bg) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth As used in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Harris Teeter Supermarkets, Inc.), Merger Agreement (Kroger Co)
Non-Solicitation. From the time of execution and delivery by each Seller and Buyer of this Agreement until the Bidding Procedures Order is entered by the Bankruptcy Court and following entry of the Sale Order (a) Stockholder both periods being referred to as the “Non-Solicitation Period”), Sellers shall not, and shall cause each of its Subsidiaries the Target Companies and, to the extent permitted in the Tiwest Joint Venture Documents, Tiwest not to, and nor shall not they authorize or permit any of its their respective Representatives to, or Affiliates to directly or indirectly, (i) solicit, initiate facilitate or knowingly encourageencourage submission of any inquiries, induce proposals or facilitate offers by, respond to any Acquisition Proposal unsolicited inquiries, proposals or offers submitted by, or enter into any discussions or negotiations regarding a Competing Transaction with any Person (other than Buyers or any inquiryof their respective Affiliates, proposal agents or offer Representatives) with respect to (A) any sale or other disposition of all or any portion of the Acquired Business, the equity securities of Sellers, Target Companies, Tiwest (including for purposes of this Section 5(c)(v), the Tiwest Joint Venture), the Acquired Assets or any similar transaction with respect to the Acquired Business, Sellers, the Target Companies, Tiwest or the Acquired Assets or (B) any Restructuring Transaction (such transactions described in clause (A) or (B) but excluding any transactions with Buyers being referred to as an “Acquisition Transaction”); or provide any information or data to, or have any discussions with any Person relating to, or that may could reasonably be expected to lead to an or result in, any Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, Transaction; or otherwise knowingly cooperate in facilitate any way witheffort or attempt to make or implement any Acquisition Transaction; or approve, recommend, propose publicly to approve or recommend or enter into any Third Party that is reasonably expected to make, agreement or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations understanding with any Third Party other Person that is reasonably expected contemplates or relates to makeany Acquisition Transaction. Sellers shall not, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (xauthorize any Target Company to, execute any definitive documents relating to any Acquisition Transaction during the Non-Solicitation Period; provided, however, that nothing in this Section 5(c)(v) shall prohibit Sellers during the portion of the Non-Solicitation Period preceding the entry of the Sale Order from responding to any negotiations unsolicited inquiries from or similar engaging in discussions with the official committees appointed in the Chapter 11 Cases or engaging in discussions with any third parties in consultation with such official committees, with respect to such inquiryRestructuring Transaction to the extent Tronox Incorporated determines, proposal or offer or (y) in good faith, that such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed action is required by the provisions Tronox Incorporated board of this Section 3.02directors’ fiduciary duties to Tronox Incorporated’s stakeholders. Stockholder Sellers shall promptly (notify Buyers promptly, but in any event within one (1) Business Day) advise twenty-four hours after receipt, of the Company and Spectrum receipt of any inquiries, proposals or offers related to any Acquisition Proposal received by Stockholder, the material terms Transaction together with true and conditions complete copies of any such Acquisition Proposal (including any material changes all documents related thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 2 contracts
Sources: Asset and Equity Purchase Agreement (Tronox Inc), Asset and Equity Purchase Agreement (Huntsman International LLC)
Non-Solicitation. (a1) Stockholder shall notFrom the date hereof until the date that this Agreement is terminated pursuant to Article 7, shall cause each of its Subsidiaries not toexcept as expressly provided in this Article 5, and shall not neither Party shall, directly or indirectly, do or authorize or permit any of its Representatives toto do, directly or indirectly, any of the following:
(ia) solicit, initiate or knowingly encourageencourage or otherwise facilitate (including by way of furnishing or providing copies of, induce access to, or disclosure of, any confidential information, properties, facilities, books or records of a Party or any Subsidiary) any Acquisition Proposal in respect of such Party or any inquiries, proposals or offers relating to any Acquisition Proposal or that could reasonably be expected to lead to an Acquisition Proposal in respect of such Party;
(b) enter into, engage in, continue or otherwise participate in any discussions or negotiations with any person (other than the other Party hereto) regarding any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to, an Acquisition Proposal;
(c) make a Change in Recommendation;
(d) accept, approve, endorse or recommend, execute or enter into, or publicly propose to accept, endorse, approve, execute or enter into, any letter of intent, agreement in principle, agreement, arrangement, offer or understanding in respect of an Acquisition Proposal (other than a confidentiality and standstill agreement contemplated under Section 5.3(1)) or otherwise cooperate with, or assist, participate in or facilitate any effort or attempt by, any Person to seek to do any of the foregoing in respect of an Acquisition Proposal
(2) Each Party shall, and shall cause its Representatives and subsidiaries to, immediately cease and terminate, and cause to be terminated, any existing solicitation, encouragement, discussion, negotiation, or other activities commenced prior to the date of this Agreement with any person (other than the other Party hereto) with respect to any inquiry, proposal or offer that constitutes or could reasonably be expected to constitute or lead to, an Acquisition Proposal, and in connection therewith, each Party will:
(a) immediately discontinue access to and disclosure of any of all information, including any data room and any confidential information, properties, facilities, books and records of such Party or of any of its Subsidiaries; and
(b) within two Business Days of the date of this Agreement request and exercise all rights it has under any confidentiality agreement at the date of this Agreement related to any Acquisition Proposal, including an Acquisition Proposal made prior to the date hereof (i) the return or destruction of all copies of any confidential information regarding such Party or any of its Subsidiaries provided to any person relating to an Acquisition Proposal or any inquiry, proposal or offer that may could reasonably be expected to lead to an Acquisition Proposal, Proposal and (ii) furnish any nonpublic the destruction of all material including or incorporating or otherwise reflecting such confidential information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third such Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless using its commercially reasonable efforts to ensure that such Representative requests are fully complied with in accordance with the terms of such rights or entitlements.
(3) Each Party represents that it has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after as at the date of this Agreement and in the 12 months prior to obtaining the ▇▇▇▇▇▇ Stockholder Approvaldate of this Agreement, waived any confidentiality, standstill, non-disclosure, non-solicitation or similar agreement or restriction to which such Party or any of its Subsidiaries is a bona fide written party. Each Party shall will use commercially reasonable efforts to enforce each confidentiality, standstill, non-disclosure, non-solicitation or similar agreement, restriction or covenant to which it or its Subsidiaries is a party and relates to a potential Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and including a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect potential Acquisition Proposal made prior to the Company date hereof) and neither it, nor any of its Subsidiaries to, and afford access to the business, properties, assets, books have or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees thatwill, without the prior written consent of Spectrumthe other Party (which may be withheld or delayed in the other Party’s sole and absolute discretion), neither it nor release any Person from, or waive, amend, suspend or otherwise modify such Person’s obligations, or any of its Affiliates Subsidiaries, under any such confidentiality, standstill, non-disclosure, non-solicitation or similar agreement to which the Party or any of its Subsidiaries is a party; provided, however, that the Parties acknowledge and agree that the automatic termination or release of any such agreement, restriction or covenant in accordance with their terms will not be a violation of this Section 5.1(3).
(4) Each Party shall purchase, directly or indirectly, advise its Representatives of the prohibitions set out in this Article 5 and any shares violation of Saturn Common Stock or securities the restrictions set forth in this Article 5 by a Party’s Representatives is deemed to be a breach of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stockthis Article 5 by such Party.
Appears in 2 contracts
Sources: Arrangement Agreement (Engine Gaming & Media, Inc.), Arrangement Agreement (GameSquare Esports Inc)
Non-Solicitation. (a) Stockholder Each Stockholder, solely in its capacity as a stockholder of the Company, shall not, shall cause each of its Subsidiaries not to, and shall not instruct, authorize or knowingly permit any of its Representatives to, directly or indirectly, (i) solicit, initiate initiate, propose or induce the making, submission or announcement of, or knowingly induce, encourage, induce facilitate or facilitate assist, any Acquisition Proposal proposal, offer or any inquiryinquiry that constitutes, proposal or offer that may would reasonably be expected to lead to to, an Acquisition Proposal, ; (ii) furnish to any nonpublic information regarding the Company or afford access Person (other than to the Company’s businessParent, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms Merger Sub and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party their Affiliates and shall not include (xRepresentatives) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any non-public information with respect relating to the Company and its Subsidiaries to, and Group or afford to any Person access to the business, properties, assets, books books, records or records other non-public information, or to any personnel, of the Company Group (other than Parent, Merger Sub and its Subsidiaries their Affiliates and Representatives), in any such case with the intent to induce the making, submission or announcement of, or to knowingly encourage, facilitate or assist, any proposal, offer or inquiry that constitutes, or is reasonably expected to lead to, an Acquisition Proposal or any inquiries, offers or the Person or group (and their respective Representatives) making such of any proposal that constitutes an Acquisition Proposal; provided(iii) participate, enter into, or engage in discussions or negotiations with any Person with respect to any inquiry or proposal that prior constitutes an Acquisition Proposal (except, in each case, solely to furnishing notify such Person in response to an unsolicited inquiry that the provisions of Section 7.3(a) of the Merger Agreement prohibit any such informationdiscussions or negotiations); (iv) approve, Stockholder endorse or recommend any inquiry, offer or proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; or (xv) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary enter into any Alternative Acquisition Agreement; provided that, for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; providedavoidance of doubt, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, this Section 3.02(a) 4.8 shall not prohibit prevent or limit inhibit such Stockholder from taking any action (permitted to be taken with respect to an Acquisition Proposal or inaction) that would not constitute a breach by Superior Proposal or to otherwise exercise their duties in their capacity as officers and directors of the Company, if taken by the Companyin each case, pursuant to in accordance with Section 5.3 7.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 2 contracts
Sources: Merger Agreement (Revance Therapeutics, Inc.), Tender and Support Agreement (Revance Therapeutics, Inc.)
Non-Solicitation. (a) Stockholder The Company shall not, and shall cause each of its the Subsidiaries not to, nor shall the Company authorize or permit, and shall cause the Subsidiaries not to authorize or permit any permit, the Representatives of its Representatives the Company or the Subsidiaries to, directly or indirectly, (i) solicit, initiate initiate, propose or knowingly encourage, induce or facilitate any Acquisition Proposal or any inquiry, proposal or offer that may reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records encourage inquiries with respect to, or otherwise knowingly cooperate in any way withthe submission of, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iiiii) participate in any discussions or negotiations with any Third Party that is reasonably expected to makeregarding, or has madefurnish to any Person (other than Parent or its Representatives) any access to the properties, an Acquisition Proposalbooks and records or confidential or material non-public information or data of the Company or any Subsidiary in connection with, regarding an any Acquisition Proposal; provided provided, however, that until such time as Stockholder Approval is obtained, nothing contained in this Agreement shall prevent the Company or the Company Board from furnishing information to, or engaging in negotiations or discussions with, any Person (and such Person’s Representatives) in connection with an unsolicited Acquisition Proposal by such Person received after the date hereof (and prior to the date of Stockholder Approval), if and only to the extent that, notwithstanding anything prior to taking such action, the contrary in this Agreement, Company Board (or any such Person may committee thereof) (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel its independent financial advisor) that such Acquisition Proposal is credible and a financial advisor of nationally recognized reputation) to beis, or to could reasonably be reasonably expected to lead to, a Superior ProposalProposal and (after consultation with and upon the advice of its outside legal counsel) that the failure to furnish such information to, Stockholder may or engage in negotiations or discussions with, such Person (and such Person’s Representatives) would be inconsistent with the Company Board’s fiduciary duties under applicable law, and (B) (1) engage in negotiations with, furnish any information with respect has received prior to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records date hereof an executed confidentiality agreement from such Person in connection with such Person’s consideration of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such an Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder or (x2) hereafter receives from such Person or group an executed confidentiality agreement containing agreement, the confidentiality terms of which are no less favorable to the Company than those contained in the Confidentiality Agreement. The Company shall, and restrictions shall direct each of its Representatives to, cease immediately upon execution of this Agreement (x) any solicitations, discussions or negotiations with any Person (other than Parent and its Representatives) that are customary for confidentiality agreements executed in similar circumstances has made or indicated an intention to make an Acquisition Proposal as of or prior to the date of this Agreement and (y) provides prior written notice any other solicitations, discussions or negotiations relating to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 transaction of the Merger Agreementtype referred to in the definition of Acquisition Proposal.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 2 contracts
Sources: Merger Agreement (King Luther Capital Management Corp), Merger Agreement (Industrial Distribution Group Inc)
Non-Solicitation. (a) Stockholder Each of the Shareholder Parties shall not, and shall cause each of its Subsidiaries (if any) and its controlled Affiliates and its and their respective officers, directors and employees not to, and shall use reasonable best efforts to cause its and their respective Representatives not authorize or permit any of its Representatives to, directly or indirectly, (ia) solicit, initiate or take any action to knowingly encourage, facilitate (including by way of providing non-public information) or knowingly encourage or induce or facilitate the submission of any Parent Acquisition Proposal or any inquiry, inquiry or proposal or offer that may reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may would reasonably be expected to lead to a Superior Proposal Parent Acquisition Proposal, (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry b) enter into or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but participate in any event within one (1) Business Day) advise the Company and Spectrum of discussions or negotiations with, furnish any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder information relating to Parent or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and Parent or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that such Shareholder Party knows, or should reasonably be expected to know, is considering, seeking to make, or has made, a Parent Acquisition Proposal or any inquiry or proposal that may reasonably be expected to lead to a Parent Acquisition Proposal, (c) enter into or approve, recommend or declare advisable for such Shareholder Party (or any of its Subsidiaries or controlled Affiliates) to execute or enter into, any agreement, letter of intent, understanding, agreement in principle or other similar arrangement in connection with any Parent Acquisition Proposal or (d) resolve, propose or agree to do any of the Person or group foregoing. Each of the Shareholder Parties shall, and shall cause its Subsidiaries (if any), its controlled Affiliates and its and their respective Representatives) making such officers, directors and employees to, and shall use reasonable best efforts to cause its and their Representatives to immediately cease and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Parent Acquisition Proposal; provided. In addition, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and each of the Company; provided, further, that all such information is provided or made available to Spectrum and Shareholder Parties shall notify the Company promptly (to the extent not previously provided or made availablebut in no event later than twenty-four (24) substantially concurrently with it being provided or made available to hours) after receipt by such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action Shareholder Party (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its controlled Affiliates or Representatives) of any Parent Acquisition Proposal (including material modifications thereto) or any request for information relating to Parent or any of its Subsidiaries or for access to the business, properties, assets, books or records of Parent or any of its Subsidiaries by any Third Party that, to the knowledge of such Shareholder Party, is considering making or has made, a Parent Acquisition Proposal, which notice shall purchasebe provided in writing and shall include a written summary of (i) any material correspondence relating thereto and (ii) the material terms and conditions of such Parent Acquisition Proposal (including material modifications thereto), directly or indirectlysubject, in each case, to the terms of any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common StockShareholder Acceptable Confidentiality Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Mobile Mini Inc), Merger Agreement (WillScot Corp)
Non-Solicitation. (a) Stockholder During the Interim Period, the Company shall not, shall cause each of its Subsidiaries not to, to and shall use its reasonable best efforts to cause its and their respective Representatives not authorize or permit any of its Representatives to, directly or indirectly, (i) initiate, solicit, initiate propose or knowingly induce the making, submission or announcement of, or knowingly encourage, induce facilitate or facilitate assist, any Acquisition Proposal inquiries or requests for information with respect to, or the making of, any inquiry regarding, or any inquiry, proposal or offer that may constitutes, or could reasonably be expected to result in or lead to an to, any Acquisition Proposal, (ii) furnish engage in, continue or otherwise participate in any nonpublic information regarding the Company negotiations or afford discussions concerning, or provide access to the Company’s its properties, business, properties, assets, books books, records or records any confidential information or data to, any Person relating to any proposal, offer, inquiry or otherwise knowingly cooperate request for information that constitutes, or could reasonably be expected to result in any way withor lead to, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Acquisition Proposal, (iv) execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, confidentiality agreement, merger agreement, acquisition agreement, exchange agreement, joint venture agreement, partnership agreement, option agreement or other similar agreement for or relating to any Acquisition Proposal or (v) resolve or agree to do, or do, any of the foregoing. The Company also agrees that, immediately following the execution of this Agreement, it shall, and shall cause each of its Subsidiaries and its and their Representatives to, cease any solicitations, discussions or negotiations with any Third Party that is reasonably expected to make, or has made, Person (other than the parties hereto and their respective Representatives) conducted heretofore in connection with an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, Proposal or any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal inquiry or offer to determine whether such inquiry, proposal or offer may request for information that could reasonably be expected to lead to, or result in, an Acquisition Proposal. The Company also agrees that within five (5) Business Days of the execution of this Agreement, the Company shall request each Person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a Superior confidentiality agreement in connection with its consideration of an Acquisition Proposal (it being understood that any such communications and with any such Third Party shall be limited whom the Company has had contact in the twelve (12) months prior to the clarification date of this Agreement regarding an Acquisition Proposal) to return or destroy all confidential information furnished to such Person by or on behalf of it or any of its Subsidiaries prior to the date hereof in accordance with the terms of the original confidentiality agreement executed with such Person and terminate access to any physical or electronic data room maintained by or on behalf of the Company or any of its Subsidiaries. If a party or any of its Subsidiaries or any of its or their respective Representatives receives any inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal at any time prior to the Closing, then such party shall promptly (and in no event later than two (2) Business Days after such party becomes aware of such inquiry or proposal) notify such Person in writing of the restrictions imposed by the provisions terms of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal7.05. Without limiting the foregoing, it is agreed thatunderstood that any violation of the restrictions contained in this Section 7.05 by any of the Company Subsidiaries, if any Representative of Stockholder or any of the Company’s or its Subsidiaries takes any action that would constitute Subsidiaries’ respective Representatives acting on the Company’s or one of its Subsidiaries’ behalf, shall be deemed to be a breach of this Section 3.02 if it were authorized or permitted 7.05 by Stockholder, such action shall constitute a breach the Company.
(b) For purposes of this Section 3.02 by StockholderAgreement, whether “Acquisition Proposal” means any proposal or not such action shall have been authorized offer from any Person or permitted by Stockholder “group” (as defined in the Exchange Act) (other than the Parent Parties, or any of its Subsidiariestheir respective Affiliates) relating to, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take single transaction or series of related transactions, (i) any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event direct or indirect acquisition or purchase of a business that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors constitutes fifty percent (50%) or more of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to benet revenues, net income or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records assets of the Company and its Subsidiaries, taken as a whole, (ii) any direct or indirect acquisition of fifty percent (50%) or more of the consolidated assets of the Company and its Subsidiaries, taken as a whole (based on the fair market value thereof, as determined in good faith by the Company Board), including through the acquisition of one or more Subsidiaries toof the Company owning such assets, (iii) acquisition of beneficial ownership, or the Person right to acquire beneficial ownership, of fifty percent (50%) or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and more of the total voting power of the equity securities of the Company; provided, furtherany tender offer or exchange offer that if consummated would result in any Person beneficially owning fifty percent (50%) or more of the total voting power of the equity securities of the Company, that all such information is provided or made available to Spectrum and any merger, reorganization, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 Subsidiary of the Merger Agreement.
Company whose business constitutes fifty percent (c50%) Nothing set forth in this Agreement shall apply to or limit in more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole) or (iv) any issuance or sale or other disposition (including by way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisitionreorganization, consolidation division, consolidation, share exchange, business combination, recapitalization or other similar transaction).
) of fifty percent (d50%) Stockholder agrees or more of the total voting power of the equity securities of the Company; provided that, without for the prior written consent avoidance of Spectrumdoubt, neither it nor any of its Affiliates no Permitted Financing shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stockconstitute an Acquisition Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Breeze Holdings Acquisition Corp.), Merger Agreement (Breeze Holdings Acquisition Corp.)
Non-Solicitation. (a) Stockholder ACME shall immediately cease and cause to be terminated all existing discussions and negotiations (including, without limitation, through any of its Representatives on its behalf), if any, with any parties conducted before the Agreement Date with respect to any Acquisition Proposal and shall immediately request the return or destruction of all information provided to any third parties which have entered into a confidentiality agreement with ACME relating to an Acquisition Proposal and shall use reasonable commercial efforts to ensure that such requests are honoured.
(b) ACME shall not, shall cause each of its Subsidiaries not todirectly or indirectly, and shall not do or authorize or permit any of its Representatives to, directly or indirectly, do, any of the following:
(i) solicit, facilitate, initiate or knowingly encourageencourage (including, induce without limitation, by way of furnishing information or facilitate entering into any Acquisition Proposal form of agreement, arrangement or understanding) or take any inquiryaction to solicit, initiate or encourage any inquiry or communication or the making of any proposal or offer that to ACME or the ACME Shareholders from any Person which constitutes, or may reasonably be expected to lead to (in either case whether in one transaction or a series of transactions): (A) any acquisition of all or substantially all of the assets of ACME; (B) an amalgamation, arrangement, merger, or consolidation involving ACME; or (C) any take-over bid, issuer bid, exchange offer, recapitalization, liquidation, dissolution, reorganization into a royalty trust or income fund or similar transaction involving ACME or any other transaction, the consummation of which would or could reasonably be expected to impede, interfere with, prevent or delay the transactions contemplated by this Agreement or the Amalgamation or which would or could reasonably be expected to materially reduce the benefits to RDT under this Agreement or the Amalgamation (any such inquiry or proposal in respect of any of the foregoing being an “Acquisition Proposal”);
(ii) enter into or participate in any negotiations or discussions regarding an Acquisition Proposal, (ii) or furnish to any nonpublic other Person any information regarding the Company or afford access with respect to the Company’s its business, properties, assetsoperations, books prospects or records to, conditions (financial or otherwise) in connection with an Acquisition Proposal or otherwise knowingly cooperate in any way with, or assist or participate in, facilitate or encourage, any Third Party that is reasonably expected effort or attempt of any other Person to makedo or seek to do any of the foregoing;
(iii) waive, or is otherwise seeking to makeforbear in the enforcement of, or has madeenter into or participate in any discussions, negotiations or agreements to waive or otherwise forbear in respect of, any rights or other benefits of ACME under confidential information agreements, including, without limitation, any “standstill provisions” thereunder; or
(iv) accept, recommend, approve or enter into an agreement to implement an Acquisition Proposal,
(c) ACME shall ensure that the officers, or (iii) participate in directors and employees of ACME and any discussions or negotiations with any Third Party that is reasonably expected to makeinvestment bankers, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms legal and conditions other advisers and representatives retained by ACME are aware of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder 9.6, and ACME shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from be responsible for any breach of this Section 3.02 9.6 by such officers, directors, employees, investment bankers, advisers and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Partyrepresentatives.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 2 contracts
Sources: Amalgamation Agreement, Amalgamation Agreement
Non-Solicitation. (1) The Company shall (i) immediately cease and cause to be terminated any discussions or negotiations that may be ongoing with any Person with respect to an Acquisition Proposal made by or on behalf of such Person and (ii) promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring the Company or any of its Subsidiaries to return or destroy all non-public information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries. Except as expressly permitted by this Article 5, the Company and its Subsidiaries shall not, and the Company shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ respective officers, directors, employees, accountants, legal counsel, financial advisors, consultants, financing sources and other advisors and representatives (collectively, “Representatives”) not to:
(a) Stockholder shall not, shall cause each of its Subsidiaries not to, and shall not authorize or permit any of its Representatives to, directly or indirectly, (i) solicit, initiate initiate, knowingly encourage or otherwise knowingly encourage, induce or facilitate (including by way of furnishing any Acquisition Proposal or non-public information) any inquiry, proposal or offer that constitutes or may reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, ;
(b) engage or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, with the material terms and conditions of any Person making such Acquisition Proposal (including or any material changes thereto) of such Person’s Representatives), provided that the Company and the identity of its Representatives may ascertain facts from the Person making any such Acquisition Proposal. Without limiting Proposal (and such Person’s Subsidiaries and its and their respective Representatives) for the foregoingsole purpose of the Board informing itself about such Acquisition Proposal and the Person that made it (and such Person’s Subsidiaries and its and their respective Representatives);
(c) (i) withhold, it is agreed thatwithdraw or modify or qualify (in a way adverse to Parent), if or publicly propose to withhold, withdraw or modify or qualify (in a way adverse to Parent), the Board Recommendation or (ii) accept, approve, endorse or recommend, or publicly propose to accept, approve, endorse or recommend, any Representative Acquisition Proposal (the actions in this clause (c), an “Adverse Recommendation Change”); or
(d) approve, endorse, recommend or enter into or publicly propose to approve, endorse, recommend or enter into, any agreement, any letter of Stockholder intent, understanding, agreement or arrangement (other than a confidentiality agreement entered into in compliance with Section 5.2 and any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized customary engagement, joint defense, clean team or permitted by Stockholder, similar agreements) to effect an Acquisition Proposal (an “Alternative Transaction Agreement”) with the Person making such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder Acquisition Proposal (or any of its Subsidiaries).
(2) Except as expressly permitted by this Article 5, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries toshall not, and afford access the Company shall instruct and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives not to:
(a) in the businessevent that any Takeover Statute is applicable to any transactions contemplated by an Acquisition Proposal, propertiestake any action to make the provisions of such Takeover Statute inapplicable to such transactions except in connection with an Adverse Recommendation Change; or
(b) terminate, assetsamend, books release or records modify or knowingly and intentionally fail to enforce any provision of, or grant any permission, waiver or request under, any standstill, confidentiality or similar agreement entered into by the applicable party in respect of or in contemplation of an Acquisition Proposal, provided that the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; providedRepresentatives may amend, that prior release or fail to furnishing enforce or grant any such informationpermission, Stockholder (x) receives from such Person waiver or group an executed confidentiality agreement containing terms and restrictions request if the Board determines in its good faith judgment after consultation with outside legal counsel that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice the failure to Spectrum and the Company; provided, further, that all such information is provided or made available do so could be reasonably likely to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently be inconsistent with it being provided or made available to such Third Partyits fiduciary duties under applicable Law.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 2 contracts
Sources: Arrangement Agreement (Unitedhealth Group Inc), Arrangement Agreement (Catamaran Corp)
Non-Solicitation. (a) Stockholder shall Except to the extent permitted by Section 5.4 of the Merger Agreement and subject to Section 2.7 hereof, the Investor agrees that he will not, shall cause each of its Subsidiaries not to, and shall not authorize or permit any of its Representatives to, directly or indirectly, (i) solicit, initiate initiate, propose, knowingly facilitate or knowingly encourageencourage (including by providing nonpublic information) any inquiries, induce proposals or facilitate any Acquisition Proposal offers or any inquiry, proposal other efforts or offer attempts that may constitute or would reasonably be expected to lead to an Acquisition any Competing Proposal, (ii) furnish to any person any material nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records with respect to, any inquiries, proposals or otherwise knowingly cooperate in offers or any way withother efforts or attempts that constitute or would reasonably be expected to lead to, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Competing Proposal, or (iii) engage, continue or participate in any discussions or negotiations with any Third Party person with respect to any inquiries, proposals or offers or any other efforts or attempts that is reasonably expected to make, constitute or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may would reasonably be expected to lead to a Superior Proposal any Competing Proposal, (it being understood that iv) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, any such communications with Competing Proposal, (v) make any such Third Party shall be limited to the clarification of the original inquiry public statement or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions inconsistent with respect to such inquirythe Company Board Recommendation, proposal or offer or (yvi) such Person’s view enter into any merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or position with respect theretoother similar document relating to a Competing Proposal or enter into any agreement or agreement in principle requiring the Investor to abandon, terminate or breach its obligations hereunder or fail to consummate the transactions contemplated hereby.
(b) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder The Investor shall promptly (but and in no event later than twenty-four (24) hours) notify Parent in the event that the Investor receives (i) any Competing Proposal, (ii) any request for non-public information relating to the Company or any Company Subsidiary other than requests submitted by Persons with whom the Investor is permitted to engage in discussions and negotiations pursuant to Section 5.4 of the Merger Agreement covered by an Acceptable Confidentiality Agreement or (iii) any inquiry or request for discussions or negotiations regarding any Competing Proposal. The Investor shall notify Parent promptly (and in any event within one 24 hours) with the identity of such Person and a copy of such Competing Proposal, inquiry or request (1) Business Day) advise or, where no such copy is available, a reasonably detailed description of such Competing Proposal, inquiry or request), including any modifications thereto. The Investor shall keep Parent reasonably informed on a reasonably current basis of the Company and Spectrum status of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Competing Proposal (including any material changes theretomodifications to the terms thereof) and the identity shall provide Parent with copies of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder all written proposals or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information offers with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries all draft documentation reflecting material revisions to, the Person or group (and their respective Representatives) making such Acquisition Competing Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 2 contracts
Sources: Contribution, Non Tender and Support Agreement (GTCR Gridlock Acquisition Sub, Inc.), Contribution, Non Tender and Support Agreement (Global Traffic Network, Inc.)
Non-Solicitation. (a) Stockholder Each of the Acquiror and the Corporation agree that during the period from the date hereof until the earlier of the Closing Date and the Termination Date, it:
(i) shall notimmediately cease and cause to be terminated any existing discussions or negotiations or other proceedings initiated prior to the date hereof by it, or its respective Representatives with respect to all Acquisition Proposals; shall cause each of its Subsidiaries not toamend, modify, waive, release or otherwise forebear in the enforcement of, and shall not authorize use all commercially reasonable efforts to enforce, any confidentiality, non-solicitation or permit standstill or similar agreements or provisions to which it and any third parties are parties; and shall discontinue access to any of its Representatives toconfidential information (and not establish or allow access to any of its confidential information, or any data room, virtual or otherwise);
(ii) shall not directly or indirectly, through any Representative, solicit, initiate or knowingly encourage (i) including by way of furnishing information), or cause or facilitate anyone else to solicit, initiate or knowingly encourage, induce or facilitate any Acquisition Proposal Proposal, or any inquiry, inquiries or the making of any proposal that constitutes or offer that may reasonably be expected to lead to an Acquisition Proposal, from any Person, or engage in any discussion, negotiations or inquiries relating thereto, provided however that the Acquiror may request information from any Person who has made an Acquisition Proposal for the sole purpose of clarifying the terms of such Acquisition Proposal;
(iii) shall not provide information concerning its securities, assets or business to any Person for or in furtherance of anything mentioned in Sections 12.1(i)or (ii) furnish any nonpublic information regarding other than as required by Applicable Law;
(iv) shall (i) immediately notify the Company or afford access to Corporation if the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder Acquiror or any of its Subsidiaries takes Representatives receives any action that would constitute a breach indications of this Section 3.02 if it were authorized interest, requests for information or permitted by Stockholder, such action shall constitute a breach offers in respect of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior and (ii) provide full details to furnishing the Corporation of the terms of any such informationindication, Stockholder (x) receives from such Person request or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice offers, subject to Spectrum and the Companyany contractual obligations of confidentiality; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.and
(b) Notwithstanding anything herein to the contrary, Section 3.02(av) shall not prohibit accept, recommend, approve or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible enter into or exchangeable propose to publicly accept, recommend, approve or exercisable for shares of Saturn Common Stockenter into an agreement to implement an Acquisition Proposal.
Appears in 2 contracts
Sources: Share Exchange Agreement (Planet 13 Holdings Inc.), Share Exchange Agreement
Non-Solicitation. (a) Stockholder shall not, shall cause each of its Subsidiaries not to, and shall not authorize or permit any of its Representatives to, directly or indirectly, (i) solicit, initiate or knowingly encourage, induce or facilitate any Acquisition Proposal or any inquiry, proposal or offer that may reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Saturn Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, Stockholder pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrumthe Company, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum the Company convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 2 contracts
Sources: Voting Agreement (Spectrum Brands Holdings, Inc.), Voting Agreement (HRG Group, Inc.)
Non-Solicitation. (a) Stockholder shall notExcept as expressly provided in this Article 7, shall cause each of its neither US Gold nor Minera Andes nor their respective Subsidiaries not to, and shall not authorize or permit any of its Representatives toshall, directly or indirectly, through any officer, director, employee, investment banker, representative or agent of such Party or its Subsidiaries, or otherwise: (i) solicit, initiate assist, initiate, induce, knowingly encourage or otherwise facilitate (including by way of furnishing information or entering into any form of agreement, arrangement or understanding) any inquiries, proposals or offers relating to, or that would reasonably be expected to lead to, any Acquisition Proposal, (ii) engage in, continue or otherwise participate in any discussions or negotiations with any Person regarding, or that would reasonably be expected to lead to, any Acquisition Proposal, (iii) furnish to any Person any information with respect to, or otherwise co-operate in any way with, or assist or participate in, facilitate or knowingly encourage, induce any effort or facilitate attempt by any other Person to make an Acquisition Proposal Proposal, or any inquiry, proposal or offer that may would reasonably be expected to lead to an Acquisition Proposal, (iv) approve, accept, endorse or recommend, or propose publicly to accept, approve, endorse or recommend any Acquisition Proposal, (v) accept or enter into or publicly propose to accept or enter into, any letter of intent, agreement (including a confidentiality or standstill agreement), understanding or arrangement, oral or written, in respect of, that is intended to result in, or would reasonably be expected to lead to an Acquisition Proposal, or (vi) make a Minera Andes Board Change in Recommendation or a US Gold Board Change in Recommendation, as applicable.
(b) Nothing contained in Section 7.1(a) or in any other provision of this Agreement shall prevent the Target Party, prior to obtaining the requisite approval of the Arrangement Resolution, in the case of Minera Andes, or the US Gold Resolution, in the case of US Gold, and subject to compliance with the other provisions of this Article 7 (i) from engaging in discussions or negotiations with, or responding to enquiries from any Person that has made a bona fide, written Acquisition Proposal (which did not result from a breach of this Section 7.1) that the Target Party Board of Directors has determined in good faith constitutes or could reasonably be expected to result in a Superior Proposal, or providing information pursuant to Section 7.1(e) to any Person where the requirements of that Section are met, or (ii) furnish from making a Minera Andes Board Change in Recommendation or US Gold Board Change in Recommendation, as the case may be, if the Target Party Board of Directors receives a bona fide written Acquisition Proposal (which did not result from a breach of this Section 7.1) that the Target Party Board of Directors has determined constitutes a Superior Proposal; provided that, in either case, the foregoing shall not relieve the Target Party from its obligation to proceed to call and hold the applicable shareholders' meeting and to hold the vote on the Arrangement Resolution or the US Gold Resolution, as the case may be, except in circumstances where this Agreement is terminated in accordance with the terms hereof.
(c) Neither Party shall (i) release any nonpublic third Person from a prohibition from making an offer for such Party's securities, (ii) fail to enforce any such prohibition, (iii) grant any consent with equivalent effect to (i) or (ii), or (iv) amend any provision of an agreement with such third Person with equivalent effect to (i) or (ii), in any case unless such third Person makes a Superior Proposal.
(d) Each Party shall immediately cease any existing discussions or negotiations with any Persons (other than with any other Party) with respect to any potential Acquisition Proposal. Each Target Party shall immediately notify the Other Party of any Acquisition Proposal or of any inquiry, proposal or request received by it for non-public information regarding relating to the Company Target Party or afford any of its Subsidiaries or Entity Joint Ventures in connection with an Acquisition Proposal or for access to the Company’s business, properties, assets, books or records to, of the Target Party or otherwise knowingly cooperate in any way with, of its Subsidiaries or Entity Joint Ventures by any Third Person or entity that informs any officer or director of the Target Party or any of its Subsidiaries that it is reasonably expected to make, or is otherwise seeking to makeconsidering making, or has made, an Acquisition Proposal. Such notice shall be made, from time to time, first immediately orally and then promptly in writing, and shall indicate the identity of the Person making such proposal, inquiry or contact and all material terms and such other details of the proposal, inquiry or contact known to such Person as the Other Party may reasonably request.
(e) If the Board of Directors of the Target Party receives a request for non-public information from a Person who proposes a bona fide written Acquisition Proposal prior to obtaining the requisite approval of the Arrangement Resolution, in the case of Minera Andes, or (iii) participate the US Gold Resolution, in any discussions the case of US Gold, and the Target Party's Board of Directors determines in good faith that such proposal is a Superior Proposal or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may could reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to and if the clarification of the original inquiry or proposal made by such Third Target Party and shall not include (xits Subsidiaries are in compliance with Section 7.1 and Section 7.2) any negotiations or similar discussions with respect to then, and only in such inquirycase, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any may the Target Party provide the Person that makes proposing an Acquisition Proposal with access to non-public information regarding the Target Party and its Subsidiaries and Entity Joint Ventures, provided the Person proposing an Acquisition Proposal has either previously entered or then enters into a confidentiality agreement substantially similar or not less onerous to that then in effect between the Parties, provided that the Other Party is promptly provided with a list and copies of all information provided to such Person not previously provided to the restrictions imposed Other Party. The Target Party agrees to promptly send a copy of any such confidentiality agreement to the Other Party.
(f) Each Party shall ensure that its and its Subsidiaries' officers and directors and any investment bankers or other advisers or representatives retained by it are aware of the provisions of this Section 3.02. Stockholder 7.1 and Section 7.2, and such Party shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from be responsible for any breach of this Section 3.02 7.1 and Section 7.2 by such Persons or by any directors, officers or employees of such Party and its Subsidiaries.
(g) Nothing contained in this Article 7 shall prohibit the Target Party or its Subsidiaries from taking and disclosing to its stockholders a position required by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act or similar Canadian securities Laws and no disclosure that the Target Party Board of Directors may determine (after consultation with counsel) that it is required to make under applicable Law shall constitute a violation of this Agreement; provided, however, that in any event the Target Party Board of Directors shall not make a Minera Andes Board Change in Recommendation or US Gold Board Change in Recommendation, as the case may be, except in accordance with the provisions of this Article 7. Any disclosure by the Target Party relating to an Acquisition Proposal shall be deemed to be a Minera Andes Board Change in Recommendation or US Gold Board Change in Recommendation, as the case may be, unless the Target Party Board of Directors reaffirms its recommendation and declaration of advisability with respect to the Arrangement in such disclosure.
(h) Nothing contained in this Agreement shall prohibit the board of directors of any Party from withdrawing, modifying, qualifying or changing its recommendation to its shareholders in respect of the Company determines transactions contemplated hereby prior to approval of the Arrangement Resolution, in the case of Minera Andes, and approval of the US Gold Resolution, in the case of US Gold, if (i) the board of directors of such Party determines, in good faith (upon the recommendation of its special committee and after consultation receiving advice of outside legal counsel), that such withdrawal, modification, qualification or change is necessary for the board of directors to act in a manner consistent with outside counsel its fiduciary duties under applicable Laws and a (ii) the board of directors of such Party has consulted with its independent financial advisor of (which must be a nationally recognized reputationinvestment bank) and such financial advisor has confirmed in writing that it is unable to be, or to be reasonably expected to lead to, render a Superior Proposal, Stockholder may (1) engage fairness opinion in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company Arrangement as of such time based on the facts and its Subsidiaries to, circumstances then existing; provided that (a) not less than 48 hours before the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing board of directors considers any proposal in respect of any such informationwithdrawal, Stockholder (x) receives from modification, qualification or change, such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior Party shall give the other Party written notice to Spectrum of such proposal and promptly advise the Companyother Party of the proposed consideration of such proposal; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) foregoing shall not prohibit or limit Stockholder relieve a Party from taking any action (or inaction) that would not constitute a breach by its obligation to proceed to call and hold the Companyapplicable shareholders' meeting and to hold the vote on the Arrangement Resolution, if taken by in the Companycase of Minera Andes, pursuant to Section 5.3 and the US Gold Resolution, in the case of the Merger Agreement.
(c) Nothing set forth US Gold, except in circumstances where this Agreement shall apply to or limit is terminated in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction)accordance with the terms hereof.
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 2 contracts
Sources: Arrangement Agreement (U S Gold Corp), Arrangement Agreement (Minera Andes Inc /Wa)
Non-Solicitation. (a) Stockholder CanniMed shall, and shall direct and cause its subsidiaries and its and their Representatives to, immediately cease and cause to be terminated any existing solicitation, encouragement discussion or negotiation with any person (other than the Offeror or its Representatives) with respect to any potential Acquisition Proposal, whether or not initiated by CanniMed, and in connection therewith, CanniMed will discontinue access to any data rooms (virtual or otherwise). CanniMed shall not amend, modify or waive any confidentiality agreement, standstill agreement or standstill provisions contained in any agreements entered into by CanniMed with other parties relating to a potential Acquisition Proposal. Within 48 hours following the execution of this Agreement, CanniMed shall request the return or destruction of all information provided to any third parties in connection with any potential Acquisition Proposal and shall use reasonable commercial efforts to ensure that such requests, and any other covenants (including standstill provision) are honoured in accordance with the terms of confidentiality agreements, where applicable.
(b) Except as otherwise provided in this Article 6, CanniMed shall not, shall cause each of its Subsidiaries not to, and shall not authorize or permit any of its subsidiaries or its or their Representatives to, directly unless the Offeror has materially breached any covenant or indirectly, obligation under this Agreement or suffers a Offeror Material Adverse Change:
(i) solicit, initiate or knowingly encourageassist, induce or facilitate any Acquisition Proposal or any inquiryinitiate, proposal or offer that may reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, encourage or otherwise knowingly cooperate in facilitate (including by way of furnishing information, permitting any way withvisit to any facilities or properties of CanniMed or any of its subsidiaries or entering into any Contract) the initiation of any inquiries, any Third Party that is reasonably expected to make, offers or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, proposals regarding an Acquisition Proposal; provided that, notwithstanding anything for greater certainty, CanniMed may advise any person making an unsolicited Acquisition Proposal that such Acquisition Proposal does not constitute a Superior Proposal when the CanniMed Board of Directors has so determined;
(ii) engage or participate in or otherwise facilitate any discussions or negotiations with, or provide any information to any person regarding, an Acquisition Proposal;
(iii) withdraw, modify or qualify (or propose to do so), in a manner adverse to the contrary Offeror, the approval or recommendation of the CanniMed Board of Directors of the Improved Offer or this Agreement;
(iv) approve or recommend or remain neutral or propose publicly to approve or recommend or remain neutral with respect to any Acquisition Proposal (it being understood that publicly taking no position or a neutral position with respect to an Acquisition Proposal for a period of no more than five (5) business days following the public announcement of such Acquisition Proposal shall not be considered to be in violation of this Section 6.1(b)(iv)), or
(v) accept, recommend, approve or enter into any letter of intent, agreement in principle, agreement, understanding or arrangement in respect of an Acquisition Proposal or providing for the payment of any break, termination or other fees or expenses to any person in the event that CanniMed completes the transactions contemplated in this Agreement or any other transaction with the Offeror or any of its affiliates agreed to prior to any termination of this Agreement, whether formal or informal.
(c) CanniMed shall, as soon as practicable and in any event within 24 hours following receipt thereof notify the Offeror, at first orally and then as soon as possible thereafter within such Person may (A) seek to clarify the terms and conditions 24 hour period in writing, of any inquiry, proposal or offer (or any amendment thereto) or request relating to determine whether such or constituting an Acquisition Proposal, any request for discussions or negotiations, and/or any request for nonpublic information relating to CanniMed or for access to properties, books and records or a list of the CanniMed Shareholders or other CanniMed Securityholders of which CanniMed, its subsidiaries, or its or their Representatives are or become aware, or any amendments to the foregoing. Such notice shall include the material terms and conditions of, and the identity of the person making, any inquiry, proposal or offer may reasonably be expected to lead to (including any amendment thereto), and shall include, in the case of a Superior Proposal (it being understood that proposal or offer, copies of any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) any amendment to any of the foregoing. CanniMed shall keep the Offeror informed of the status, including any change to the material terms, of any such Person’s view proposal or position offer or any amendment to the foregoing, and will respond promptly to all reasonable inquiries by the Offeror with respect thereto.
(d) and (BNotwithstanding Section 6.1(a) inform or any Person that makes an other provision of this Agreement to the contrary, if after the date of this Agreement, CanniMed receives a request for material non-public information in connection with a potential Acquisition Proposal or receives a bona fide Acquisition Proposal (that was not solicited, encouraged or facilitated after the date hereof in contravention of Section 6.1(a)), and the CanniMed Board of Directors determines in good faith after consultation with its financial advisors and its legal counsel, that such Acquisition Proposal would, if consummated in accordance with its terms (but not assuming away any risk of non-completion), be a Superior Proposal, then, and only then, CanniMed may provide such person with access to information regarding CanniMed and its subsidiaries and engage in discussions and negotiations with such person, subject to the execution of an appropriate and customary confidentiality agreement (if one has not already been entered into) providing for standstill provisions (which shall not be waived or modified without the prior written approval of the restrictions imposed by Offeror) other than to effect a Superior Proposal with the consent of the CanniMed Board of Directors in compliance with this Agreement, provided however that the Offeror is provided with access to similar information to which such person was provided if it has not already been provided such information.
(e) CanniMed shall ensure that its subsidiaries and its and their Representatives are aware of, and agree to be bound by, the provisions of this Section 3.02. Stockholder 6.1, and CanniMed shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from be responsible for any breach of this Section 3.02 6.1 by such subsidiaries and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 2 contracts
Sources: Support Agreement (Aurora Cannabis Inc), Support Agreement (Aurora Cannabis Inc)
Non-Solicitation. (a) Stockholder East agrees that, except as expressly contemplated by this Agreement, neither it nor any of the East Subsidiaries shall, and East shall notuse its reasonable best efforts, and shall cause each of its the East Subsidiaries not to use their respective reasonable best efforts to, and shall cause their respective Representatives not authorize or permit any of its Representatives to, directly or indirectly, to (i) directly or indirectly initiate or solicit, initiate or knowingly encourage, induce encourage or knowingly facilitate any Acquisition Proposal (including by way of furnishing non-public information relating to East or any inquiryof the East Subsidiaries) any inquiries or the making or submission of any proposal that constitutes, proposal or offer that may could reasonably be expected to lead to to, an Acquisition ProposalProposal with respect to East, (ii) furnish other than clarifying terms of the Acquisition Proposal in accordance with the penultimate sentence of this Section 5.4(a), participate or engage in discussions or negotiations with, or disclose any nonpublic non-public information regarding or data relating to East or any of the Company East Subsidiaries or afford access to the Company’s business, properties, assets, books or records to, of East or otherwise knowingly cooperate in any way with, of the East Subsidiaries to any Third Party Person that is reasonably expected to make, or is otherwise seeking to make, or has made, made an Acquisition ProposalProposal with respect to East or to any Person in contemplation of making an Acquisition Proposal with respect to East, or (iii) participate accept an Acquisition Proposal with respect to East or enter into any agreement, including any letter of intent, memorandum of understanding, agreement in any discussions principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or negotiations with any Third Party other similar agreement, arrangement or understanding, (A) constituting or related to, or that is intended to or could reasonably be expected to makelead to, any Acquisition Proposal with respect to East (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 5.4) or (B) requiring, intending to cause, or has madewhich could reasonably be expected to cause East to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement (each, an “East Acquisition ProposalAgreement”). Any violation of the foregoing restrictions by the East Subsidiaries or by any Representatives of East or any of the East Subsidiaries, regarding an Acquisition Proposal; provided thatwhether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of East or any of the East Subsidiaries or otherwise, notwithstanding shall be deemed to be a breach of this Agreement by East. Notwithstanding anything to the contrary in this Agreement, prior to obtaining the East Stockholder Approval, East and the East Board may take any actions described in clause (ii) in the first sentence of this Section 5.4(a) with respect to a third party if (w) after the date of this Agreement, East receives a written Acquisition Proposal with respect to East from such Person may third party (Aand such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by East or any of the East Subsidiaries or any of their respective Representatives), (x) seek East provides Central the notice required by Section 5.4(g) with respect to clarify such Acquisition Proposal, (y) the terms East Board determines in good faith (after consultation with East’s financial advisors and conditions of any inquiry, outside legal counsel) that such proposal constitutes or offer to determine whether such inquiry, proposal or offer may could reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiryEast, proposal or offer or (y) such Person’s view or position with respect thereto) and (Bz) inform the East Board determines in good faith (after consultation with East’s outside legal counsel) that the failure to participate in such discussions or negotiations or to disclose such information or data to such third party would be inconsistent with its fiduciary duties; provided that East shall not deliver any Person that makes information to such third party without first entering into an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any Acceptable Confidentiality Agreement with such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such actionthird party. Notwithstanding the restrictions limitations set forth above in this Section 3.02(a5.4(a) and subject to compliance with East’s obligations contained in Section 5.4(g), in the event that Stockholder if East receives, after following the date of this Agreement hereof and prior to obtaining the ▇▇▇▇▇▇ Stockholder ApprovalEast Stockholders’ Meeting, a an unsolicited bona fide written Acquisition Proposal that did not result from any a knowing and intentional breach of this Section 3.02 5.4, East and its Representatives may contact the Person or any of such Person’s Representatives who has made such Acquisition Proposal solely to clarify the terms of such Acquisition Proposal so that East may inform itself about such Acquisition Proposal. Nothing contained in this Section 5.4 shall prohibit East or the East Board from taking and disclosing to the East Stockholders a position with respect to an Acquisition Proposal with respect to East pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law.
(b) Neither (i) the East Board nor any committee thereof shall directly or indirectly (A) withhold or withdraw (or amend, modify or qualify in a manner adverse to Central or Merger Sub), or publicly propose or announce any intention to withhold or withdraw (or amend, modify or qualify in a manner adverse to Central or Merger Sub), the East Recommendation or (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Acquisition Proposal with respect to East (any action described in this clause (i) being referred to as an “East Adverse Recommendation Change”) nor (ii) shall East or any of the East Subsidiaries execute or enter into an East Acquisition Agreement. Notwithstanding the foregoing, at any time prior to obtaining the East Stockholder Approval, and subject to East’s compliance in all material respects at all times with the provisions of this Section 5.4 and Section 5.3, in response to a Superior Proposal with respect to East that was not initiated, solicited, knowingly encouraged or knowingly facilitated by East or any of the East Subsidiaries or any of their respective Representatives, the East Board may make an East Adverse Recommendation Change; provided, however, that East shall not be entitled to exercise its right to make an East Adverse Recommendation Change in response to a Superior Proposal with respect to East (x) until three (3) Business Days after East provides written notice to Central (an “East Notice”) advising Central that the board East Board or a committee thereof has received a Superior Proposal, specifying the material terms and conditions of directors such Superior Proposal, and identifying the Person or group making such Superior Proposal, (y) if during such three (3) Business Day period, Central proposes any alternative transaction (including any modifications to the terms of this Agreement), unless the Company East Board determines in good faith (after consultation with East’s financial advisors and outside counsel legal counsel, and taking into account all financial, legal, and regulatory terms and conditions of such alternative transaction proposal, including any conditions to and expected timing of consummation, and any risks of non-consummation of such alternative transaction proposal) that such alternative transaction proposal is not at least as favorable to East and its stockholders as the Superior Proposal (it being understood that any change in the financial or other material terms of a Superior Proposal shall require a new East Notice and a financial advisor of nationally recognized reputationnew two (2) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1Business Day period under this Section 5.4(b)) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (yz) provides prior written notice unless the East Board, after consultation with outside legal counsel, determines that the failure to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently make an East Adverse Recommendation Change would be inconsistent with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreementits fiduciary duties.
(c) Nothing set forth Notwithstanding the first sentence of Section 5.4(b), at any time prior to obtaining the East Stockholder Approval, and subject to East’s compliance in all material respects at all times with the provisions of this Section 5.4 and Section 5.3, in response to an East Intervening Event, the East Board may make an East Adverse Recommendation Change described in clause (A) of the definition thereof if the East Board (i) determines in good faith, after consultation with East’s outside legal counsel and any other advisor it chooses to consult, that the failure to make such East Adverse Recommendation Change would be inconsistent with its fiduciary duties, (ii) determines in good faith that the reasons for making such East Adverse Recommendation Change are independent of any Acquisition Proposal (whether pending, potential or otherwise) with respect to East and (iii) provides written notice to Central (an “East Notice of Change”) advising Central that the East Board is contemplating making an East Adverse Recommendation Change and specifying the material facts and information constituting the basis for such contemplated determination; provided, however, that (x) the East Board may not make such an East Adverse Recommendation Change until the third Business Day after receipt by Central of the East Notice of Change and (y) during such three (3) Business Day period, at the request of Central, East shall negotiate in good faith with respect to any changes or modifications to this Agreement shall apply which would allow the East Board not to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction)make such East Adverse Recommendation Change consistent with its fiduciary duties.
(d) Stockholder Central agrees that, without except as expressly contemplated by this Agreement or Section 5.4(d) of the prior written consent of SpectrumCentral Disclosure Letter, neither it nor any of the Central Subsidiaries shall, and Central shall use its Affiliates reasonable best efforts, and shall purchasecause each of the Central Subsidiaries to use their respective reasonable best efforts to, cause their respective Representatives not to (i) directly or indirectlyindirectly initiate or solicit, or knowingly encourage or knowingly facilitate (including by way of furnishing non-public information relating to Central or any of the Central Subsidiaries) any inquiries or the making or submission of any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal with respect to Central, (ii) other than clarifying terms of the Acquisition Proposal in accordance with the penultimate sentence of this Section 5.4(d), participate or engage in discussions or negotiations with, or disclose any non-public information or data relating to Central or any of the Central Subsidiaries or afford access to the properties, books or records of Central or any of the Central Subsidiaries to any Person that has made an Acquisition Proposal with respect to Central or to any Person in contemplation of making an Acquisition Proposal with respect to Central, or (iii) accept an Acquisition Proposal with respect to Central or enter into any agreement, including any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement, arrangement or understanding, (A) constituting or related to, or that is intended to or could reasonably be expected to lead to, any shares Acquisition Proposal with respect to Central (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 5.4) or (B) requiring, intending to cause, or which could reasonably be expected to cause Central to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement (each, a “Central Acquisition Agreement”). Any violation of Saturn Common Stock the foregoing restrictions by any of the Central Subsidiaries or securities by any Representatives of Spectrum convertible Central or any of the Central Subsidiaries, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of Central or any of the Central Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by Central. Notwithstanding anything to the contrary in this Agreement, prior to obtaining the Central Stockholder Approval, Central and the Central Board may take any actions described in clause (ii) in the first sentence of this Section 5.4(d) with respect to a third party if (w) after the date of this Agreement, Central receives a written Acquisition Proposal with respect to Central from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or knowingly facilitated by Central or any of the Central Subsidiaries or any of their respective Representatives), (x) Central provides East the notice required by Section 5.4(g) with respect to such Acquisition Proposal, (y) the Central Board determines in good faith (after consultation with Central’s financial advisors and outside legal counsel) that such proposal constitutes or could reasonably be expected to lead to a Superior Proposal with respect to Central, and (z) the Central Board determines in good faith (after consultation with Central’s outside legal counsel) that the failure to participate in such discussions or negotiations or to disclose such information or data to such third party would be inconsistent with its fiduciary duties; provided that Central shall not deliver any information to such third party without first entering into an Acceptable Confidentiality Agreement with such third party. Notwithstanding the limitations set forth in this Section 5.4(d), and subject to compliance with Central’s obligations contained in Section 5.4(g), if Central receives, following the date hereof and prior to the Central Stockholders’ Meeting, an unsolicited bona fide written Acquisition Proposal that did not result from a knowing and intentional breach of this Section 5.4, Central and its Representatives may contact the Person or exchangeable any of such Person’s Representatives who has made such Acquisition Proposal solely to clarify the terms of such Acquisition Proposal so that Central may inform itself about such Acquisition Proposal. Nothing contained in this Section 5.4 shall prohibit Central or exercisable for shares the Central Board from taking and disclosing to the Central Stockholders a position with respect to an Acquisition Proposal with respect to Central pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, in either case to the extent required by applicable Law.
(e) Neither (i) the Central Board nor any committee thereof shall directly or indirectly (A) withhold or withdraw (or amend or modify or qualify in a manner adverse to East), or publicly propose or announce any intention to withhold or withdraw (or amend or modify or qualify in a manner adverse to East), the Central Recommendation or the Central Proposal or (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Acquisition Proposal with respect to Central (any action described in this clause (i) being referred to as a “Central Adverse Recommendation Change”) nor (ii) shall Central or any of Saturn Common Stock.the Central Subsidiaries execute or enter into, a Central Acquisition Agreement. Notwithstanding the foregoing, at any time prior to obtaining the Central Stockholder Approval, and subject to Central’s compliance in all material respects at all times with the provisions of this Section 5.4 and Section 5.3, in response to a Superior Proposal with respect to Central, that was not initiated, solicited, knowingly encouraged or knowingly facilitated by Central or any of the Central Subsidiaries or any of their respective Representatives, the Central Board may make a Central Adverse Recommendation Change; provided, however, that Central shall not be entitled to exercise its right to make a Central Adverse Recommendation Change in response to a Superior Proposal with respect to Central (x) until three (3) Business Days after Central provides written notice to East (a “Central Notice”) advising East that the Central Board or a committee thereof has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal, and identifying the Person or group making such Superior Proposal, (y) if during such three (3) Business Day period, East proposes any alternative transaction (including any modifications to the terms of this Agreement), unless the Central Board determines in good faith (after consultation with Central’s financial advisors and outside legal counsel, and taking into account all financial, legal, and regulatory terms and conditions of such alternative transaction proposal, including any conditions to and expected timing of consummation, and any risks of non-co
Appears in 2 contracts
Sources: Merger Agreement (WPX Energy, Inc.), Merger Agreement (Devon Energy Corp/De)
Non-Solicitation. (a) Stockholder The Company agrees that, except as expressly contemplated by this Section 5.06, the Company shall not, and shall cause each of its Subsidiaries not and their respective Representatives to, (i) immediately cease any solicitation, encouragement, discussions or negotiations of or with any Persons that may be ongoing with respect to an Acquisition Proposal and shall not authorize (ii) during the period from the date of this Agreement through the earlier of the Closing and the termination of this Agreement, not, directly or permit indirectly (A) initiate, encourage, seek or solicit, or take any action to knowingly facilitate (including by way of its Representatives tofurnishing non-public information), directly or indirectly, (i) solicit, initiate any inquiries or knowingly encourage, induce the making or facilitate submission of any Acquisition Proposal or any inquiry, proposal or offer that may reasonably be expected to lead to constitutes an Acquisition Proposal; (B) participate or engage in discussions or negotiations with, (ii) furnish or disclose any nonpublic non-public information regarding or data relating to the Company or any of its Subsidiaries or afford access to the Company’s business, properties, assets, books or records toof the Company or any of its Subsidiaries to any Person or group of Persons (or any of their Affiliates or Representatives) that has made an Acquisition Proposal with respect to the Company or (C) approve or recommend, make any public statement approving or recommending, or otherwise knowingly cooperate enter into any agreement, including any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement, with respect to an Acquisition Proposal with respect to the Company (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 5.06). Promptly following the execution of this Agreement, the Company shall, to the extent it had not previously done so prior to the date of this Agreement, immediately discontinue access by any way withPerson or group of Persons, and any Third Party of their Affiliates (other than Parent and its Affiliates), to any data room (virtual or otherwise) established by the Company or its Representatives for such purpose. Within ten (10) Business Days from the date hereof, the Company shall request the return or destruction of all confidential, non-public information provided to third parties that is reasonably expected have entered into confidentiality agreements with the Company or any Subsidiary thereof entered into during the twelve (12) months preceding the date of this Agreement relating to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding . Notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Company Stockholder Approval, the Company and the Company Board may take any actions described in clause (ii)(B) of this Section 5.06(a) with respect to a third party if (A) the Company receives a bona fide written Acquisition Proposal that did with respect to the Company from such third party (and such Acquisition Proposal was not result from any breach initiated, sought, solicited, knowingly encouraged or facilitated in violation of this Section 3.02 5.06) and that (B) after consultation with the board of directors of Company’s financial advisors and outside legal counsel, the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, that such proposal is or to could reasonably be reasonably expected to lead to, a Superior ProposalProposal with respect to the Company, Stockholder provided that, the Company may (1) engage in negotiations with, furnish deliver non-public information to such third party only pursuant to an Acceptable Confidentiality Agreement and so long as it sends a copy of such Acceptable Confidentiality Agreement and any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (such third party pursuant to this sentence to Parent to the extent such information was not previously provided to Parent and its Representatives. Nothing contained in this Section 5.06 shall prohibit the Company or made availablethe Company Board from (1) substantially concurrently taking and disclosing to the Company Stockholders a position with respect to an Acquisition Proposal with respect to the Company pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, if after consultation with outside legal counsel to the Company Board, the Company Board subsequently determines in good faith that the failure to do so would be reasonably likely to be inconsistent with its fiduciary duties to the Company Stockholders or (2) directing any Person (or the Representatives of that Person) who makes an Acquisition Proposal regarding the Company to the provisions of this Section 5.06, provided that this sentence shall not permit the Company Board to make a Company Adverse Recommendation Change, except to the extent permitted by Section 5.06(b) or Section 5.06(c). Without limiting the foregoing, it being provided is understood that any violation of the restrictions contained in this Section 5.06(a) by any of the Company’s or made available its Subsidiaries’ respective Representatives shall be deemed to such Third Partybe a breach of this Section 5.06(a) by the Company.
(b) Notwithstanding anything herein to Neither the contrary, Section 3.02(aCompany Board nor any committee thereof shall directly or indirectly (x)(i) shall not prohibit or limit Stockholder from taking any action withdraw (or inactionamend, qualify or modify in a manner adverse to Parent or Merger Sub), or publicly propose to withdraw (or amend, qualify or modify in a manner adverse to Parent or Merger Sub), the approval, recommendation or declaration of advisability by the Company Board or any such committee of the transactions contemplated by this Agreement, (ii) that would not constitute a breach by propose publicly to recommend, adopt or approve any Acquisition Proposal with respect to the Company, (iii) fail to publicly reaffirm or re-publish the Company Recommendation within ten (10) Business Days of being requested by Parent to do so (or if taken by earlier, at least two (2) Business Days prior to the CompanyCompany Stockholders’ Meeting), or (iv) fail to send to the Company Stockholders, within ten (10) Business Days after the commencement of a tender or exchange offer relating to Company Shares (or if earlier, at least two (2) Business Days prior to the Company Stockholders’ Meeting), a statement disclosing that the Company recommends rejection of such tender or exchange offer and reaffirming the Company Recommendation (any action described in this sentence being referred to as a “Company Adverse Recommendation Change”) or (y) authorize, cause or permit the Company or any of its Subsidiaries to execute or enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, amalgamation agreement or other similar agreement related to any Acquisition Proposal, other than any Acceptable Confidentiality Agreement pursuant to Section 5.3 5.06(a) (“Company Acquisition Agreement”) For the avoidance of doubt, a change of the Merger Company Recommendation to “neutral” is a Company Adverse Recommendation Change. Notwithstanding the foregoing, at any time prior to obtaining the Company Stockholder Approval, and subject to the Company’s compliance at all times with the provisions of this Section 5.06 and Section 5.05, in response to a Superior Proposal with respect to the Company that has not been withdrawn and did not result from a breach of Section 5.06(a), the Company Board may make a Company Adverse Recommendation Change; provided, however, that unless the Company Stockholders’ Meeting is scheduled to occur within the next ten (10) Business Days, the Company shall not be entitled to exercise its right to make a Company Adverse Recommendation Change in response to a Superior Proposal with respect to the Company (x) until four (4) Business Days after the Company provides written notice to Parent advising Parent that the Company Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal, identifying the Person or group of Persons making such Superior Proposal and including copies of all material documents pertaining to such Superior Proposal; (y) if during such four (4) Business Day period (it being understood and agreed that any change to the financial or other material terms and conditions of a Superior Proposal shall require an additional notice to Parent of two (2) Business Days running from the date of such notice), Parent irrevocably proposes any alternative transaction (including any modifications to the terms of this Agreement), unless the Company Board determines in good faith, after good faith negotiations between the Company and Parent (if such negotiations are requested by Parent) during such four (4) Business Day period (after and taking into account all financial, legal and regulatory terms and conditions of such alternative transaction proposal and expected timing of consummation and the relative risks of non-consummation of the alternative transaction proposal and the Superior Proposal) that such alternative transaction proposal is not at least as favorable to the Company and the Company Stockholders as the Superior Proposal and (z) unless the Company Board determines in good faith, after consultation with the Company’s financial advisors and outside legal counsel, that the failure to make a Company Adverse Recommendation Change would be reasonably likely to be inconsistent with its fiduciary duties to the Company Stockholders.
(c) Nothing set forth Notwithstanding the first sentence of Section 5.06(b), at any time prior to obtaining the Company Stockholder Approval, in connection with any Intervening Event, the Company Board may make a Company Adverse Recommendation Change, after the Company Board (i) determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to make such Company Adverse Recommendation Change would be reasonably likely to be inconsistent with its fiduciary duties to the Company Stockholders under applicable Laws, (ii) determines in good faith that the reasons for making such Company Adverse Recommendation Change are independent of and unrelated to any pending Acquisition Proposal with respect to the Company and (iii) provides written notice to Parent (a “Company Notice of Change”) advising Parent that the Company Board is contemplating making a Company Adverse Recommendation Change and specifying the material facts and information constituting the basis for such contemplated determination; provided, however, that, unless the Company Stockholders’ Meeting is scheduled to occur within the next four (4) Business Days, (x) the Company Board may not make such Company Adverse Recommendation Change until the fourth (4th) Business Day after receipt by Parent of a Company Notice of Change and (y) during such fourth (4th) Business Day period, at the request of Parent, the Company shall negotiate in good faith with respect to any changes or modifications to this Agreement shall apply which would allow the Company Board not to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent companymake such Company Adverse Recommendation Change, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction)consistent with its fiduciary duties.
(d) Stockholder The Parties agree that in addition to the obligations of the Company and Parent set forth in paragraphs (a) through (d) of this Section 5.06, as promptly as practicable after receipt thereof (and in any event, within one (1) Business Day), the Company or Parent, as applicable, shall advise Parent or the Company, respectively, in writing of any request for information or any Acquisition Proposal with respect to such party received from any Person or group of Persons, or any inquiry, discussions or negotiations with respect to any Acquisition Proposal with respect to such party, and the terms and conditions of such request, Acquisition Proposal, inquiry, discussions or negotiations, and the Company or Parent, as applicable, shall promptly (and in any event, within one (1) Business Day) provide to Parent or the Company, respectively, copies of any written materials received by the Company or Parent, as applicable, in connection with any of the foregoing and the identity of the Person or group of Persons making any such request, Acquisition Proposal or inquiry or with whom any discussions or negotiations are taking place. Each of the Company and Parent agrees thatthat it shall simultaneously provide to the other any non-public information concerning itself or its Subsidiaries provided to any other Person or group of Persons in connection with any Acquisition Proposal which was not previously provided to the other. the Company and Parent shall keep Parent and the Company, without respectively, reasonably informed of the prior written consent status of Spectrumany Acquisition Proposals (including the identity of the parties and price involved and any changes to any material terms and conditions thereof). Each of the Company and Parent agrees not to release, neither it nor or permit any of its Affiliates shall purchase, directly or indirectlyto release, any shares Person from, or waive any provisions of, any confidentiality or standstill agreement to which it is a party or fail to enforce, to the fullest extent permitted under applicable Law, any such standstill or similar agreement to which it is a party; provided, however, that, if either the Company Board or Parent Board determines in good faith after consultation with the Company’s or Parent’s outside legal counsel, as applicable, that the failure to waive (or amend or modify) a particular standstill provision, or other provision with similar effect, could reasonably be expected to be a breach of Saturn Common Stock its directors’ fiduciary duties under applicable Law, the Company or securities Parent, as the case may be, may, with prior written notice to the other party, waive (or amend or modify) such standstill provision, or other provision with similar effect, solely to the extent necessary to permit the applicable Person (if it has not been solicited in violation of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stockthis Section 5.06) to make an Acquisition Proposal.
Appears in 2 contracts
Sources: Merger Agreement (McEwen Mining Inc.), Merger Agreement (Timberline Resources Corp)
Non-Solicitation. (a) Stockholder shall notUnion agrees that, shall cause each except as expressly contemplated hereby, neither it nor any of its Subsidiaries not toshall, and Union shall, and shall cause its Subsidiaries to, instruct its and their respective Representatives not authorize to directly or permit indirectly (i) initiate, seek or solicit, or knowingly encourage or facilitate (including by way of furnishing non-public information) or take any of its Representatives toother action that is reasonably expected to promote, directly or indirectly, any inquiries or the making or submission of any proposal that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal with respect to Union; (iii) solicitparticipate or engage in discussions or negotiations with, initiate or knowingly encouragedisclose any non-public information or data relating to Union or any of its Subsidiaries or afford access to the properties, induce books or facilitate records of Union or any of its Subsidiaries to any Person that has made an Acquisition Proposal with respect to Union or (iii) enter into any agreement, including any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement, with respect to an Acquisition Proposal with respect to Union (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.04). Union shall, and shall cause its Subsidiaries and instruct its and their respective Representatives to, promptly upon the execution of this Agreement cause to be terminated any solicitation, encouragement, discussion or negotiation with or involving any Person (other than Visor and its Affiliates) conducted heretofore by Union or any Subsidiary thereof or any of its or their respective Representatives, with respect to an Acquisition Proposal or any inquiry, proposal or offer that may which could reasonably be expected to lead to an Acquisition Proposal, and, in connection therewith, Union will promptly discontinue access by any Person (iiother than Visor and its Affiliates) furnish to any nonpublic data room (virtual or otherwise) established by Union or its Representatives for such purpose. Within ten (10) Business Days from the date hereof, Union shall request the return or destruction of all confidential, non-public information regarding the Company provided to third parties that have entered into confidentiality agreements with Union or afford access any Subsidiary thereof since December 1, 2012, relating to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding . Notwithstanding anything to the contrary in this Agreement, prior to obtaining Union Shareholder Approval, Union and the Union Board may take any such Person may actions described in clause (Aii) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead this Section 6.04(a) with respect to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include third party if (x) any negotiations or similar discussions Union receives a written Acquisition Proposal with respect to Union from such inquirythird party (and such Acquisition Proposal was not initiated, proposal sought, solicited, knowingly encouraged or offer or facilitated in violation of this Section 6.04) and (y) such Person’s view proposal constitutes, or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company Union Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to that such proposal is reasonably be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information Proposal with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition ProposalUnion; provided, that prior Union may deliver non-public information to furnishing any such information, Stockholder (x) receives from such Person or group an executed third party only pursuant to a confidentiality agreement containing terms no less favorable to Union with respect to confidentiality than the terms of the Confidentiality Agreement (including with any standstill agreement or similar provisions) (an “Acceptable Confidentiality Agreement”) and restrictions sends a copy of such Agreement to Visor promptly following its execution. Nothing contained in this Section 6.04 shall prohibit Union or the Union Board from taking and disclosing to Union Shareholders a position with respect to an Acquisition Proposal with respect to Union pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, if the Union Board has reasonably determined in good faith that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice the failure to Spectrum and do so would be reasonably likely to be a breach of its fiduciary duties to the CompanyUnion Shareholders; provided, furtherthat this sentence shall not permit the Union Board to make a Union Adverse Recommendation Change, that all such information is provided or made available to Spectrum and the Company (except to the extent not previously provided permitted by Section 6.04(b) or made available) substantially concurrently with it being provided or made available to such Third PartySection 6.04(c).
(b) Neither the Union Board nor any committee thereof shall directly or indirectly (i) withhold, withdraw (or amend, qualify or modify in a manner adverse to Visor or Merger Sub), or publicly propose to withdraw (or amend, qualify or modify in a manner adverse to Visor or Merger Sub), the approval, recommendation or declaration of advisability by the Union Board or any such committee of the transactions contemplated by this Agreement; (ii) propose publicly to recommend, adopt or approve any Acquisition Proposal with respect to Union or (iii) fail to reaffirm or re-publish the Union Recommendation within five (5) Business Days of being requested by Visor to do so (any action described in this sentence being referred to as a “Union Adverse Recommendation Change”). For the avoidance of doubt, a change of Union Recommendation to “neutral” is a Union Adverse Recommendation Change. Notwithstanding anything herein the foregoing, at any time prior to obtaining Union Shareholder Approval, and subject to Union’s compliance at all times with the provisions of this Section 6.04 and Section 6.03, in response to a Superior Proposal with respect to Union that has not been withdrawn and did not result from a breach of Section 6.04(a), the Union Board may make a Union Adverse Recommendation Change; provided, however, that unless the Union Shareholders’ Meeting is scheduled to occur within the next ten (10) Business Days, Union shall not be entitled to exercise its right to make a Union Adverse Recommendation Change in response to a Superior Proposal with respect to Union (x) until five (5) Business Days after Union provides written notice to Visor advising Visor that the Union Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal, identifying the Person or group making such Superior Proposal and including copies of all documents pertaining to such Superior Proposal; (y) if during such five (5) Business Day period, Visor irrevocably proposes any alternative transaction (including any modifications to the contraryterms of this Agreement), Section 3.02(aunless the Union Board determines in good faith, after good faith negotiations between Union and Visor (if such negotiations are requested by Visor) shall not prohibit or limit Stockholder from during such five (5) Business Day period (after and taking any action (or inactioninto account all financial, legal and regulatory terms and conditions of such alternative transaction proposal and expected timing of consummation and the relative risks of non-consummation of the alternative transaction proposal and the Superior Proposal) that such alternative transaction proposal is not at least as favorable to Union and its shareholders as the Superior Proposal and (z) unless the Union Board determines that the failure to make a Union Adverse Recommendation Change would not constitute be a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreementits fiduciary obligations.
(c) Nothing set forth Notwithstanding the first sentence of Section 6.04(b), at any time prior to obtaining Union Shareholder Approval, in connection with any Intervening Event, the Union Board may make a Union Adverse Recommendation Change, after the Union Board (i) determines in good faith that the failure to make such Union Adverse Recommendation Change would be a breach of its fiduciary duties to the shareholders of Union, (ii) determines in good faith that the reasons for making such Union Adverse Recommendation Change are independent of and unrelated to any pending Acquisition Proposal with respect to Union and (iii) provides written notice to Visor (a “Union Notice of Change”) advising Visor that the Union Board is contemplating making a Union Adverse Recommendation Change and specifying the material facts and information constituting the basis for such contemplated determination; provided, however, that, unless the Union Shareholders’ Meeting is scheduled to occur within the next five (5) Business Days, (x) the Union Board may not make such a Union Adverse Recommendation Change until the fifth Business Day after receipt by Visor of a Union Notice of Change and (y) during such five (5) Business Day period, at the request of Visor, Union shall negotiate in good faith with respect to any changes or modifications to this Agreement shall apply which would allow the Union Board not to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent companymake such Union Adverse Recommendation Change, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction)consistent with its fiduciary duties.
(d) Stockholder Visor agrees that, without the prior written consent of Spectrumexcept as expressly contemplated hereby, neither it nor any of its Affiliates Subsidiaries shall, and Visor shall, and shall purchaseinstruct its Subsidiaries to, instruct its and their respective Representatives not to directly or indirectly (i) initiate, seek or solicit, or knowingly encourage or facilitate (including by way of furnishing non-public information) or take any other action that is reasonably expected to promote, directly or indirectly, any shares inquiries or the making or submission of Saturn Common Stock any proposal that constitutes, or securities would reasonably be expected to lead to, an Acquisition Proposal with respect to Visor; (ii) participate or engage in discussions or negotiations with, or disclose any non-public information or data relating to Visor or any of Spectrum convertible its Subsidiaries or afford access to the properties, books or records of Visor or any of its Subsidiaries to any Person that has made an Acquisition Proposal with respect to Visor or (iii) enter into any agreement, including any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or exchangeable other similar agreement with respect to an Acquisition Proposal with respect to Visor (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.04). Visor shall, and shall cause its Subsidiaries and instruct its and their respective Representatives to, promptly upon the execution of this Agreement cause to be terminated any solicitation, encouragement, discussion or exercisable negotiation with or involving any Person (other than Union and its Affiliates) conducted heretofore by Visor or any Subsidiary thereof or any of its or their respective Representatives, with respect to an Acquisition Proposal or which could reasonably be expected to lead to an Acquisition Proposal, and, in connection therewith, Visor shall promptly discontinue access by any Person (other than Union and its Affiliates) to any data room (virtual or otherwise) established by Visor or its Representatives for shares such purpose. Within ten (10) Business Days from the date hereof, Visor shall request the return or destruction of Saturn Common Stockall confidential, non-public information provided to third parties that have entered into confidentiality agreements with Visor or any Subsidiary thereof since December 1, 2012, relating to an Acquisition Proposal. Notwithstanding anything to the contrary in this Agreement, prior to obtaining the Visor Shareholder Approval, Visor and the Visor Board may take any actions described in clause (ii) of this Section 6.04(d) with respect to a third party if (x) Visor receives a written Acquisition Proposal with respect to Visor from such third party (and such Acquisition Proposal was not initiated, sought, solicited, knowingly encouraged or facilitated in violation of this Section 6.04) and (y) such proposal constitutes, or the Visor Board determines in good faith that such proposal is reasonably be expected to lead to, a Superior Proposal with respect to Visor; provided, that Visor may deliver non-public information to such third party only pursuant to an Acceptable Confidentiality Agreement (but in relation to Visor rather than Union). Nothing contained in this Section 6.04 shall prohibit Visor or the Visor Board from taking and disclosing to the Visor Shareholders a position with respect to an Acquisition Proposal with respect to Visor pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, if the Visor Board has reasonably determined in good faith that the failure to do so would be reasonably likely to be a breach of its fiduciary duties; provided, that this sentence shall not permit the Visor Board to make a Visor Adverse Recommendation Change, except to the extent permitted by Section 6.04(e) or Section 6.04(f).
(e) Neither the Visor Board nor any committee thereof shall directly or indirectly (1) withhold, withdraw (or amend, qualify or modify in a manner adverse to Union) or publicly propose to withdraw (or amend, qualify or modify in a manner adverse to Union), the approval, recommendation or declaration of advisability by the Visor Board or any such committee of the transactions contemplated by this Agreement including the issuance of Visor Shares in the Merger; (ii) propose publicly to recommend, adopt or approve any Acquisition Proposal with respect to Visor or (iii) fail to reaffirm or re-publish the Visor Recommendation within five (5) Business Days of being requested by Union to do so (any action described in this sentence being referred to as a “Visor Adverse Recommendation Change”). For the avoidance of doubt, a change of Visor Recommendation to “neutral” is a Visor Adverse Recommendation Change. Notwithstanding the foregoing, at any time prior to obtaining the Visor Shareholder Approval, and subject to Visor’s compliance at all times with the provisions of this Section 6.04 and Section 6.03, in response to a Superior Proposal with respect to Visor that has not been withdrawn and did not result from a breach of Section 6.04(d), the Visor Board may make a Visor Adverse Recommendation Change; provided, however, that unless the Visor Shareholders’ Meeting is scheduled to occur with the next ten (10) Business Days, Visor shall not be entitled to exercise its right to make a Visor Adverse Recommendation Change in response to a Superior Proposal with respect to Visor (x) until five (5) Business Days after Visor provides written notice to Union advising Union that the Visor Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal, identifying the Person or group making such Superior Proposal and including copies of all documents pertaining to such Superior Proposal; (y) if during such five (5) Business Day period, Union irrevocably proposes any alternative transaction (including any modifications to the terms of this Agreement), unless the Visor Board determines in good faith, after good faith negotiations between Visor and Union (if such negotiations are requested by Union) during such five (5) Business Day period (after and taking into account all financial, legal and regulatory terms and conditions of such alternative transaction proposal and expected timing of consummation and the relative risks of non-consummation of the alternative transaction proposal and the Superior Proposal) that such alternative transaction proposal is not at least as favorable to Visor and its shareholders as the Superior Proposal and (z) unless the Visor Board determines that the failure to make a Visor Adverse Recommendation Change would be a breach of its fiduciary obligations.
(f) Notwithstanding the first sentence of Section 6.04(e), at any time prior to obtaining the Visor Shareholder Approval, in connection with any Intervening Event, the Visor Board may make a Visor Adverse Recommendation Change after the Visor Board (i) determines in good faith that the failure to make such Visor Adverse Recommendation Change would be a breach of its fiduciary duties, (ii) determines in good faith that the reasons for making such Visor Adverse Recommendation Change are independent and unrelated to any pending Acquisition Proposal with respect to Union and (iii) provides written notice to Union (a “Visor Notice of Change”) advising Union that the Visor Board is contemplating making a Visor Adverse Recommendation Change and specifying the material facts and information constituting the basis for such contemplated determination; provided, however, that, unless the Visor Shareholders’ Meeting is scheduled to occur within the next five (5) Business Days, (x) the Visor Board may not make such a Visor Adverse Recommendation Change until the fifth Business Day after receipt by Union of the Visor Notice of Change and (y) during such five (5) Business Day period, at the request of Union, Visor shall negotiate in good faith with respect to any changes or modifications to this
Appears in 2 contracts
Sources: Merger Agreement (Vision Sciences Inc /De/), Merger Agreement (Uroplasty Inc)
Non-Solicitation. (a) Stockholder Except as expressly provided in this Article 7, ▇▇▇▇▇▇ agrees that it shall not, shall cause each of its Subsidiaries not to, and shall not authorize or permit any of its Representatives to, directly or indirectly, through any Representative, or otherwise, and shall not permit any such Representative to:
(i) solicit, initiate assist, initiate, encourage or knowingly encourageotherwise facilitate (including by way of furnishing or providing copies of, induce access to, or facilitate disclosure of, any Acquisition Proposal information, permitting any visit to any facilities or properties of Azarga or any Azarga Subsidiary, including any material mineral properties, or entering into any form of written or oral agreement, arrangement or understanding) any inquiry, proposal or offer that constitutes, or may reasonably be expected to constitute or lead to to, an Acquisition Proposal or potential Acquisition Proposal, ;
(ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, enter into or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, engage or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, person (other than enCore and its affiliates) regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal that constitutes or offer may reasonably be expected to constitute or lead to an Acquisition Proposal or potential Acquisition Proposal;
(iii) make a Superior Change in Recommendation; or
(iv) accept, approve, endorse or recommend, or propose to accept, approve, endorse or recommend, or take no position or remain neutral with respect to, any Acquisition Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry publicly taking no position or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions a neutral position with respect to an Acquisition Proposal for a period of no more than five (5) Business Days following the formal announcement of such Acquisition Proposal shall not be considered to be in violation of this Section 7.1 provided the Party’s Board has rejected such Acquisition Proposal and affirmed its recommendation in favour of the Arrangement before the end of such five (5) Business Day period).
(b) Azarga shall, and shall cause its Subsidiaries and its Representatives to, immediately cease and terminate, and cause to be terminated, any solicitation, encouragement, discussion, negotiations, or other activities commenced prior to the date of this Agreement with any person with respect to any inquiry, proposal or offer that constitutes, or may reasonably be expected to constitute or lead to, an Acquisition Proposal or potential Acquisition Proposal, and in connection therewith shall:
(yi) such Person’s view discontinue access to and disclosure of all information, including any data room and any non-public or position with respect theretoconfidential information, properties, facilities, books and records of Azarga or any Azarga Subsidiary; and
(ii) if requested in writing by enCore, request and exercise all rights it has to require: (A) the return or destruction of copies of any information regarding Azarga or any Azarga Subsidiary provided to any person other than enCore, and (B) inform the destruction of all material including or incorporating or otherwise reflecting such information regarding Azarga or any Person Azarga Subsidiary, using all necessary efforts to ensure that makes an Acquisition Proposal such requests are fully complied with in accordance with the terms of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly such rights or entitlements.
(but in c) Azarga represents and warrants that it has not waived any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholderconfidentiality, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, standstill or similar agreement or restriction to which it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute is a breach party, except to permit submissions of expressions of interest prior to the date of this Section 3.02 if it were authorized Agreement, and further covenants and agrees: (i) that Azarga shall take all necessary action to enforce each confidentiality, standstill or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether similar agreement or not such action shall have been authorized or permitted by Stockholder restriction to which Azarga or any of its SubsidiariesSubsidiaries is a party, unless such Representative has agreed and (ii) that neither Azarga nor any of the Azarga Subsidiaries or any of their respective Representatives have or will, without the prior written consent of enCore (which may be withheld or delayed in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(aAzarga’s sole and absolute discretion), in the event that Stockholder receivesrelease any person from, after or waive, amend, suspend or otherwise modify such person’s obligations respecting Azarga or any of its Subsidiaries under any confidentiality, standstill or similar agreement or restriction to which Azarga or any of its Subsidiaries is a party.
(d) Notwithstanding Subsection 7.1(a) hereof and any other provision of this Agreement, if at any time following the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approvalapproval of such the Azarga Shareholders at the Azarga Meeting, Azarga or any of its Subsidiaries receives a request for material non-public information, or to enter into discussions, from a Person that proposes an unsolicited bona fide written Acquisition Proposal that did not result from any a breach of this Section 3.02 Article 7 and that the board of directors of the Company Azarga’s Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, that such Acquisition Proposal constitutes or to would reasonably be reasonably expected to lead to, a constitute an Azarga Superior Proposal; then Azarga may: (i) provide the Person making such Acquisition Proposal with access to material non-public information regarding Azarga and its Subsidiaries; and/or (ii) enter into, Stockholder may (1) engage in participate, facilitate and maintain discussions or negotiations with, furnish any information and otherwise cooperate with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries toassist, the Person or group (and their respective Representatives) making such Acquisition Proposal; , provided that Azarga shall not, and shall not allow any of its Subsidiaries or Representatives to disclosure any non-public information without having (A) entered into a confidentiality and standstill agreement on substantially the same terms as the Confidentiality Agreement, including a standstill provision at least as stringent as contained in the Confidentiality Agreement, provided, however that prior to furnishing any such information, Stockholder (x) receives from confidentiality and standstill agreement shall not preclude such Person or group from making an executed confidentiality Azarga Superior Proposal and no such agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances shall be required if such Person is already party to a confidentially agreement with ▇▇▇▇▇▇ promptly upon execution to the other Party; and (yB) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided other Party a list of and access to the information made or made available) substantially concurrently with it being provided or to be made available to such Third PartyPerson. Any such confidentiality and standstill agreement may not include any provision calling for an exclusive right to negotiate with Azarga and may not restrict Azarga or any of its Subsidiaries from complying with Article 7.
(be) Notwithstanding anything herein to If Azarga or any of its Subsidiaries or Representatives receives an Acquisition Proposal, Azarga shall promptly (and in any event within 24 hours) notify enCore, at first orally and then in writing, of such Acquisition Proposal, including a description of its material terms and conditions; the contraryidentity of all persons making the Acquisition Proposal; copies of all documents, Section 3.02(a) shall not prohibit correspondence or limit Stockholder other material received in respect of, from taking or on behalf of any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 such person in respect of the Merger AgreementAcquisition Proposal; and any other information which enCore may reasonably request. Azarga shall keep enCore promptly and fully informed of the status of developments and negotiations with respect to such Acquisition Proposal, including any changes, modifications or other amendments to any such Acquisition Proposal.
(cf) Nothing set forth in Azarga shall ensure that its Subsidiaries and Representatives are aware of the provisions of this Agreement Section 7.1 and it shall apply to or limit in be responsible for any way a change breach of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether such provisions by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stocksuch persons.
Appears in 2 contracts
Sources: Arrangement Agreement (Encore Energy Corp.), Arrangement Agreement (Encore Energy Corp.)
Non-Solicitation. (a) Stockholder From the date of this Agreement until the Effective Time or, if earlier, the valid termination of this Agreement in accordance with Section 10.01, except as disclosed in Schedule 6.06, the Company shall not, and shall cause each of the other Company Group Members and use its Subsidiaries reasonable best efforts to cause its and their respective Representatives not to, and shall not authorize or permit any of its Representatives to, directly or indirectly, :
(i) solicitinitiate, initiate solicit or knowingly encourageencourage or knowingly facilitate any inquiries or requests for information with respect to, induce or facilitate the making of, any inquiry regarding, or any proposal or offer that constitutes, or could reasonably be expected to result in or lead to, any Acquisition Proposal;
(ii) engage in, continue or otherwise participate in any negotiations or discussions concerning, or provide access to its properties, books and records or any confidential information or data to, any Person relating to any proposal, offer, inquiry or request for information that constitutes, or could reasonably be expected to result in or lead to, any Acquisition Proposal;
(iii) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Acquisition Proposal;
(iv) execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, confidentiality agreement, merger agreement, acquisition agreement, exchange agreement, joint venture agreement, partnership agreement, option agreement or other similar agreement for or relating to any Acquisition Proposal; or
(v) resolve or agree to do any of the foregoing.
(b) Except as disclosed in Schedule 6.06, the Company also agrees that immediately following the execution of this Agreement it shall, and shall cause the other Company Group Members and use its reasonable best efforts to cause its and their respective Representatives to, cease any solicitations, discussions or negotiations with any Person (other than the parties hereto and their respective Representatives) conducted heretofore in connection with an Acquisition Proposal or any inquiry or request for information that could reasonably be expected to lead to, or result in, an Acquisition Proposal. The Company also agrees that within three Business Days of the execution of this Agreement, the Company shall request each Person (other than the parties hereto and their respective Representatives) that has prior to the date hereof executed a confidentiality agreement in connection with its consideration of acquiring any Company Group Member (and with whom any Company Group Member has had contact in 12 months prior to the date of this Agreement regarding the acquisition of any Company Group Member) to return or destroy all confidential information furnished to such Person by or on behalf of it prior to the date hereof and terminate access to any physical or electronic data room maintained by or on behalf of any Company Group Member. The Company shall promptly (and in any event within two Business Days) notify, in writing, Acquiror of the receipt of any inquiry, proposal, offer or request for information received after the date hereof that constitutes, or could reasonably be expected to result in or lead to, any Acquisition Proposal, which notice shall include a summary of the material terms of, and the identity of the Person or group of Persons making, such inquiry, proposal, offer or request for information and an unredacted copy of any Acquisition Proposal or any inquiry, proposal or offer that may reasonably be expected to lead to an Acquisition Proposalmade in writing or, (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s businessif not in writing, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions a written description of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of such inquiry, proposal or offer. The Company shall promptly (and in any event within two Business Days) keep Acquiror informed of any material developments with respect to any such inquiry, proposal, offer, request for information or Acquisition Proposal (including any material changes thereto) thereto and the identity copies of the Person making any such Acquisition Proposaladditional written materials received by any Company Group Member or its Representatives). Without limiting the foregoing, it is agreed thatunderstood that any violation of the restrictions contained in this Section 6.06 by any Company Group Member or of any other Company Group Member’s Representatives acting on the Company’s behalf, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute shall be deemed to be a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach 6.06 by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 2 contracts
Sources: Merger Agreement (Spring Valley Acquisition Corp.), Merger Agreement (Spring Valley Acquisition Corp.)
Non-Solicitation. (a1) Stockholder Except as expressly provided in this Article 5, the Company and its Subsidiaries shall not, shall cause each of its Subsidiaries not to, and shall not authorize or permit any of its Representatives to, directly or indirectly, through any officer, director, employee, representative (iincluding any financial or other adviser) or agent of the Company or of any of its Subsidiaries (collectively “Representatives”), and shall not permit any such Person to:
(a) solicit, initiate assist, initiate, knowingly encourage or otherwise knowingly encouragefacilitate, induce (including by way of furnishing or facilitate providing copies of, access to, or disclosure of, any Acquisition Proposal confidential information, properties, facilities, books or records of the Company or any Subsidiary) any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, ;
(b) enter into or (iii) otherwise engage or participate in any discussions or negotiations with any Third Party that is reasonably expected to make, Person (other than the Purchaser or has made, an Acquisition Proposal, any of its affiliates) regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer that constitutes or would reasonably be expected to determine whether constitute or lead to, an Acquisition Proposal, it being acknowledged and agreed that the Company may communicate with any Person for purposes of advising such Person of the non-solicitation restrictions in Article 5 hereof, also advising such Person, as applicable, that their Acquisition Proposal does not constitute a Superior Proposal or is not reasonably expected to constitute or lead to a Superior Proposal; or
(c) make a Change in Recommendation other than following the occurrence of a Purchaser Material Adverse Effect.
(2) The Company shall, and shall cause its Subsidiaries and its Representatives to, immediately cease and terminate, and cause to be terminated, any solicitation, encouragement, discussion, negotiations, or other activities commenced on or prior to the date of this Agreement with any Person (other than the Purchaser) with respect to any inquiry, proposal or offer that constitutes, or may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry constitute or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior an Acquisition Proposal, Stockholder may (1) engage and in negotiations with, furnish any information with respect to connection therewith the Company and its Subsidiaries to, and afford shall:
(a) promptly discontinue access to and disclosure of all confidential information, including the businessCompany Data Room, properties, assetsfacilities, books or and records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and Subsidiary of the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.and
(b) Notwithstanding anything herein within two Business Days of the date hereof, to the contraryextent it is permitted to do so, Section 3.02(arequest, and use commercially reasonably efforts to exercise all rights it has to require (i) the return or destruction of all copies of any confidential information regarding the Company or any Subsidiary provided to any such Person other than the Purchaser; and (ii) the destruction of such material including or incorporating or otherwise reflecting such confidential information regarding the Company or any Subsidiary, to the extent that such information has not previously been returned or destroyed, using its commercially reasonable efforts to ensure that such requests are fully complied with in accordance with the terms of such rights or entitlements.
(3) The Company represents and warrants that, in the 12 months prior to the date hereof, the Company has not waived any standstill or similar agreement or restriction to which the Company or any Subsidiary is a party relating to an Acquisition Proposal, and covenants and agrees that (i) the Company shall not prohibit use commercially reasonable efforts to enforce each confidentiality, standstill, non-disclosure or limit Stockholder from taking similar agreement or restriction to which the Company or any action Subsidiary is a party in connection with a potential or actual Acquisition Proposal, and (or inactionii) that would not constitute a breach by neither the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in nor any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees thatSubsidiary will, without the prior written consent of Spectrumthe Purchaser (which may be withheld or delayed in the Purchaser’s sole and absolute discretion), neither it nor release any Person from, or waive, amend, suspend or otherwise modify such Person’s obligations respecting the Company, or any of its Affiliates Subsidiaries, under any confidentiality, standstill, non-disclosure or similar agreement or restriction to which the Company or any Subsidiary is a party in connection with a potential or actual Acquisition Proposal, it being acknowledged and agreed that the automatic termination of any standstill, confidentially or non-disclosure provisions of any such agreement or restriction as a result of the entering into and announcement of this Agreement by the Company pursuant to the express terms of any such agreement or restriction, shall purchase, directly or indirectly, any shares not be a violation of Saturn Common Stock or securities this Section 5.1 and that the Company shall not be prohibited from considering a Superior Proposal from a party whose obligations so terminated automatically upon the entering into and announcement of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stockthis Agreement.
Appears in 2 contracts
Sources: Arrangement Agreement (Cresco Labs Inc.), Arrangement Agreement (Columbia Care Inc.)
Non-Solicitation. (a) Stockholder Each of the Shareholder Parties shall not, and shall cause each of its Subsidiaries (if any) and its controlled Affiliates and its and their respective officers, directors and employees not to, and shall use reasonable best efforts to cause its and their respective Representatives not authorize or permit any of its Representatives to, directly or indirectly, (ia) solicit, initiate or take any action to knowingly encourage, facilitate (including by way of providing non-public information) or knowingly encourage or induce or facilitate the submission of any Parent Acquisition Proposal or any inquiry, inquiry or proposal or offer that may reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may would reasonably be expected to lead to a Superior Proposal Parent Acquisition Proposal, (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry b) enter into or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but participate in any event within one (1) Business Day) advise the Company and Spectrum of discussions or negotiations with, furnish any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder information relating to Parent or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and Parent or any of its Subsidiaries to, otherwise cooperate in any way with, or knowingly assist, participate in, facilitate or knowingly encourage any effort by, any Third Party that such Shareholder Party knows, or should reasonably be expected to know, is considering, seeking to make, or has made, a Parent Acquisition Proposal or any inquiry or proposal that may reasonably be expected to lead to a Parent Acquisition Proposal, (c) enter into or approve, recommend or declare advisable for such Shareholder Party (or any of its Subsidiaries or controlled Affiliates) to execute or enter into, any agreement, letter of intent, understanding, agreement in principle or other similar arrangement in connection with any Parent Acquisition Proposal or (d) resolve, propose or agree to do any of the Person or group foregoing. Each of the Shareholder Parties shall, and shall cause its Subsidiaries (if any), its controlled Affiliates and its and their respective officers, directors and employees to, and shall use reasonable best efforts to cause its and their Representatives to immediately cease and cause to be terminated any and all existing activities, discussions or negotiations, if any, with any Third Party conducted prior to the date of this Agreement with respect to any Parent Acquisition Proposal. In addition, each of the Shareholder Parties shall notify the Company promptly (but in no event later than twenty-four (24) hours) after receipt by such Shareholder Party (or any of its controlled Affiliates or Representatives) of any Parent Acquisition Proposal (including material modifications thereto) or any request for information relating to Parent or any of its Subsidiaries or for access to the business, properties, assets, books or records of Parent or any of its Subsidiaries by any Third Party that, to the knowledge of such Shareholder Party, is considering making such or has made, a Parent Acquisition Proposal; provided, that which notice shall be provided in writing and shall include a written summary of (i) any material correspondence relating thereto and (ii) the material terms and conditions of such Parent Acquisition Proposal (including material modifications thereto), subject, in each case, to the terms of any Shareholder Acceptable Confidentiality Agreement.
(b) Notwithstanding Section 4.03(a), if at any time prior to furnishing any such informationthe Parent Approval Time (and in no event after the Parent Approval Time), Stockholder (i) the Board of Directors of Parent receives a bona fide written Parent Acquisition Proposal made after the date hereof that was not solicited in breach of, and does not otherwise result from a violation of Section 7.2 of the Merger Agreement or Section 4.03 and (ii) the Board of Directors of Parent (or committee thereof) (including the Parent Special Committee) determines in good faith and after consultation with Parent’s financial advisor and outside legal counsel that (x) receives from such Person or group an executed confidentiality agreement containing terms the failure of Parent to take the actions set forth in Section 7.2(b)(i) and restrictions that are customary for confidentiality agreements executed in similar circumstances Section 7.2(b)(ii) of the Merger Agreement would be inconsistent with the fiduciary duties of the Board of Directors of Parent (or, if applicable, committee thereof) under Applicable Law and (y) provides prior written notice it is advisable for the Shareholder Parties to Spectrum take the actions set forth in Section 4.03(b)(1)-(2), then (and only then) the Shareholder Parties shall be permitted to (1) engage in negotiations or discussions with any Third Party that, subject to Parent’s compliance with Section 7.2(a) of the Merger Agreement and the CompanyShareholder Parties’ compliance with Section 4.03(a), has made after the date of this Agreement an unsolicited bona fide written Parent Acquisition Proposal that the Board of Directors of Parent (or Parent Special Committee) determines in good faith, after consultation with its financial advisor and outside legal counsel, is or is reasonably likely to lead to a Parent Superior Proposal and (2) furnish to such Third Party and its Representatives and financing sources nonpublic information relating to such Shareholder Party pursuant to a confidentiality agreement with terms no less favorable to Shareholder than those contained in the Confidentiality Agreement (it being understood that such confidentiality agreement need not include any standstill terms and shall not provide such person with any exclusive right to negotiate with Parent or any Shareholder Party) (a “Shareholder Acceptable Confidentiality Agreement”), a copy of which shall be provided substantially concurrently with its execution, to the Company for informational purposes; provided, further, provided that all such non-public information (to the extent that such information has not been previously provided or made available to the Company) is provided or made available to Spectrum and the Company (to Company, as the extent not previously provided or made available) case may be, substantially concurrently with the time it being is provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, ; provided further that no Shareholder Acceptable Confidentiality Agreement shall contain Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 3 of the Merger Confidentiality Agreement and upon entry into any Shareholder Acceptable Confidentiality Agreement or Parent Acceptable Confidentiality Agreement.
(c) Nothing set forth in this , the parties hereby agree that the Confidentiality Agreement shall apply be amended to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction)remove and replace Section 3 thereof with “[Reserved]”.
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 2 contracts
Sources: Voting Agreement (Mobile Mini Inc), Voting Agreement (Sapphire Holding S.a r.l.)
Non-Solicitation. (a) Stockholder shall not[Intentionally omitted]
(b) Subject to Section 7.4(c), shall cause each from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article IX, none of the Company, its Subsidiaries not to, and shall not authorize or permit any of its their respective Representatives toshall, directly or indirectly, (i) solicitinitiate, initiate solicit or knowingly encourageencourage (including by way of providing information) the submission of any inquiries, induce proposals or facilitate any Acquisition Proposal offers or any inquiry, proposal other efforts or offer attempts that constitute or may reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, any Company Acquisition Proposal or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate engage in any discussions or negotiations with any Third Party that is reasonably expected to makerespect thereto or otherwise knowingly cooperate with or knowingly assist or participate in, or has madeknowingly facilitate any such inquiries, an proposals, discussions or negotiations, or (ii) approve or recommend, or publicly propose to approve or recommend, a Company Acquisition ProposalProposal or enter into any merger agreement, regarding an letter of intent, agreement in principle, share purchase agreement, asset purchase agreement or share exchange agreement, option agreement or other similar agreement providing for or relating to a Company Acquisition Proposal; provided thatProposal or enter into any agreement or agreement in principle requiring the Company to abandon, notwithstanding anything terminate or fail to consummate the contrary in transactions contemplated hereby or breach its obligations hereunder or propose or agree to do any of the foregoing. Upon execution of this Agreement, the Company shall immediately cease and cause to be terminated any such Person may (A) seek to clarify the terms and conditions of any inquirysolicitation, proposal encouragement, discussion or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications negotiation with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed conducted theretofore by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by StockholderCompany, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes or any action that would constitute a breach of this Section 3.02 if it were authorized their respective Representatives with respect to any Company Acquisition Proposal and cause to be returned or permitted by Stockholder, destroyed all confidential information provided or made available to such action shall constitute a breach Person on behalf of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder the Company or any of its Subsidiaries. From date hereof until the Effective Time or, unless such Representative has agreed (if earlier, the termination of this Agreement in accordance with Article IX, the Company shall not amend, modify or waive any capacity) in provision of any confidentiality agreement to which it is a writing enforceable by such party not to take or terminate any such action. confidentiality agreement, and shall use reasonable best efforts to enforce the material terms thereof.
(c) Notwithstanding anything to the restrictions set forth above contrary contained in this Section 3.02(a7.4(b), in the event that Stockholder receives, after if at any time following the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Requisite Stockholder ApprovalVote, (i) the Company has received a bona fide written Company Acquisition Proposal that did not result from any breach of this Section 3.02 and a third party that the board Board of directors Directors of the Company (following the recommendation of the Special Committee if such committee still exists) believes in good faith to be bona fide and (ii) the Board of Directors of the Company (following the recommendation of the Special Committee if such committee still exists) determines in good faith (faith, after consultation with its independent financial advisors and outside counsel and a financial advisor of nationally recognized reputation) to becounsel, that such Company Acquisition Proposal constitutes or to could reasonably be reasonably expected to lead to, result in a Superior Proposal, Stockholder then the Company may (1A) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books Person making such Company Acquisition Proposal and (B) participate in discussions or records of the Company and its Subsidiaries to, negotiations with the Person or group (and their respective Representatives) making such Company Acquisition Proposal regarding such Company Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder the Company (x) receives from will not, and will not allow Company Representatives to, disclose any non-public information to such Person or group without entering into an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances Acceptable Confidentiality Agreement, and (y) provides prior written notice will promptly provide to Spectrum and the Company; provided, further, that all such Parent any non-public information is provided or made available to Spectrum and concerning the Company (or its Subsidiaries provided to the extent such other Person which was not previously provided to Parent. After the date hereof, the Company shall promptly (and in any event within two Business Days) notify Parent in the event it receives a Company Acquisition Proposal from a Person or made availablegroup of related Persons or any material revisions thereto. Without limiting the foregoing, the Company shall promptly (and in any event within two Business Days) substantially concurrently with notify Parent if it being provided determines to begin providing information or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit engage in negotiations concerning a Company Acquisition Proposal from a Person or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, group of related Persons pursuant to this Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction7.4(c).
(d) Notwithstanding anything in this Agreement to the contrary, if, at any time prior to obtaining the Requisite Stockholder agrees thatVote, without the Company receives a Company Acquisition Proposal which the Board of Directors of the Company (following the recommendation of the Special Committee, if such committee still exists) concludes in good faith constitutes a Superior Proposal, the Board of Directors of the Company (following the recommendation of the Special Committee, if such committee still exists) may (x) effect a Recommendation Withdrawal and/or (y) terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal if the Board of Directors of the Company (following the recommendation of the Special Committee, if such committee still exists) determines in good faith, after consultation with outside counsel, that failure to take such action could violate its fiduciary duties under applicable Law; provided, however that the Company shall not terminate this Agreement pursuant to the foregoing clause (y), and any purported termination pursuant to the foregoing clause (y) shall be void and of no force or effect, unless concurrently with such termination the Company pays the Termination Fee payable pursuant to Section 9.2(a)(i) and the amount set forth in Section 9.2(a)(ii); and provided, further, that the Board of Directors may not effect a Recommendation Withdrawal pursuant to the foregoing clause (x) or terminate this Agreement pursuant to the foregoing clause (y) unless (i) the Company shall have provided prior written consent notice to Parent, at least three calendar days in advance (the “Notice Period”), of Spectrumits intention to effect a Recommendation Withdrawal in response to such Superior Proposal or terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal, neither it nor which notice shall include a written summary of the material terms and conditions of such Superior Proposal (including the identity of the party making such Superior Proposal) and (ii) the Company shall have contemporaneously provided a copy of the relevant proposed transaction agreements with the party making such Superior Proposal. In the event of any material revisions to the Superior Proposal, the Company shall be required to deliver a new written notice to Parent and to comply with the requirements of this Section 7.4(d) with respect to such new written notice.
(e) The Company agrees that any violations of the restrictions set forth in this Section 7.4 by any Representative of the Company or any of its Affiliates Subsidiaries, shall purchasebe deemed to be a breach of this Section 7.4 by the Company.
(f) As used in this Agreement, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.the term:
Appears in 2 contracts
Sources: Merger Agreement (Community Health Systems Inc), Merger Agreement (Triad Hospitals Inc)
Non-Solicitation. (a1) Stockholder shall notFrom the date hereof until the date that this Agreement is terminated pursuant to Article 7, shall cause each of its Subsidiaries not toexcept as expressly provided in this Article 5, and shall not neither Party shall, directly or indirectly, do or authorize or permit any of its Representatives toto do, directly or indirectly, any of the following:
(ia) solicit, initiate or knowingly encourageencourage or otherwise facilitate (including by way of furnishing or providing copies of, induce access to, or facilitate disclosure of, any confidential information, properties, facilities, books or records of a Party or any Subsidiary) any Acquisition Proposal in respect of such Party or any inquiries, proposals or offers relating to any Acquisition Proposal or that could reasonably be expected to lead to an Acquisition Proposal in respect of such Party;
(b) enter into, engage in, continue or otherwise participate in any discussions or negotiations with any person (other than the other Party hereto) regarding any Acquisition Proposal in respect of such Party or any inquiries, proposals or offers relating to any Acquisition Proposal or that could reasonably be expected to constitute or lead to an Acquisition Proposal in respect of such Party;
(c) make a Change in Recommendation;
(d) accept, approve, endorse or recommend, execute or enter into, or publicly propose to accept, approve, execute or enter into, any letter of intent, agreement in principle, agreement, arrangement, offer or understanding in respect of an Acquisition Proposal (other than a confidentiality and standstill agreement contemplated under Section 5.3(1)).
(2) Each Party shall, and shall cause its Representatives to, immediately cease and terminate, and cause to be terminated, any existing solicitation, encouragement, discussion, negotiation, or other activities commenced prior to the date of this Agreement with any person (other than the other Party hereto) with respect to any inquiry, proposal or offer that constitutes or could reasonably be expected to constitute or lead to, an Acquisition Proposal, and in connection therewith, each Party will:
(a) immediately discontinue access to and disclosure of any of its confidential information, including any data room and any confidential information, properties, facilities, books and records of such Party or of any of its Subsidiaries; and
(b) within two Business Days of the date of this Agreement request and exercise all rights it has under any confidentiality agreement at the date of this Agreement related to any Acquisition Proposal, including an Acquisition Proposal made prior to the date hereof (i) the return or destruction of all copies of any confidential information regarding such Party or any of its Subsidiaries provided to any person relating to an Acquisition Proposal or any inquiry, proposal or offer that may could reasonably be expected to lead to an Acquisition Proposal, Proposal and (ii) furnish any nonpublic the destruction of all material including or incorporating or otherwise reflecting such confidential information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third such Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative .
(3) Each Party represents that it has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after as of the date of this Agreement and in the 12 months prior to obtaining the ▇▇▇▇▇▇ Stockholder Approvaldate of this Agreement, waived any confidentiality, standstill, non-disclosure, non-solicitation or similar agreement or restriction to which such Party or any of its Subsidiaries is a bona fide written party. Each Party shall will use commercially reasonable efforts to enforce each confidentiality, standstill, non-disclosure, non-solicitation or similar agreement, restriction or covenant to which it or its Subsidiaries is a party and relates to a potential Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and including a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect potential Acquisition Proposal made prior to the Company date hereof) and neither it, nor any of its Subsidiaries to, and afford access to the business, properties, assets, books have or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees thatwill, without the prior written consent of Spectrumthe other Party (which may be withheld or delayed in the other Party’s sole and absolute discretion), neither it nor release any Person from, or waive, amend, suspend or otherwise modify such Person’s obligations, or any of its Affiliates Subsidiaries, under any such confidentiality, standstill, non-disclosure, non-solicitation or similar agreement to which the Party or any of its Subsidiaries is a party; provided, however, that the Parties acknowledge and agree that the automatic termination or release of any such agreement, restriction or covenant in accordance with their terms will not be a violation of this Section 5.1(3).
(4) Each Party shall purchase, directly or indirectly, advise its Representatives of the prohibitions set out in this Article 5 and any shares violation of Saturn Common Stock or securities the restrictions set forth in this Article 5 by a Party’s Representatives is deemed to be a breach of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stockthis Article 5 by such Party.
Appears in 2 contracts
Sources: Arrangement Agreement (Tilray, Inc.), Arrangement Agreement (Aphria Inc.)
Non-Solicitation. (a) Stockholder shall notSubject to any actions which Target is required to take so as to comply with the requirements of the Irish Takeover Rules, shall cause each Target agrees that from the date of its Subsidiaries not tothis Agreement neither it nor any member of the Target Group shall, and shall that it will use all reasonable endeavours to cause its and their respective Representatives and any person Acting in Concert with Target not authorize or permit any of its Representatives to, directly or indirectly, :
(i) solicit, initiate or take any action to knowingly encourage, induce facilitate or facilitate knowingly encourage (including by way of furnishing non-public information to any Acquisition person in connection with) the submission of any Target Alternative Proposal or any inquiryindication, proposal or offer inquiry that may reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may would reasonably be expected to lead to a Superior Proposal (it being understood that any such communications Target Alternative Proposal, save as required to ensure compliance with any such Third Party shall be limited to the clarification Rule 20.3 and 23.1 of the original inquiry Irish Takeover Rules;
(ii) prior to receipt of any Target Alternative Proposal, enter into, continue or proposal made participate in any discussions or negotiations regarding a Target Alternative Proposal with, or, save as required by such Third Party and shall not include (x) any negotiations Law or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal Rule 20.3 of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations withIrish Takeover Rules, furnish any non-public information with respect to the Company and regarding Target or its Subsidiaries Subsidiary to, and or afford access to the business, properties, assets, personnel, books or records of the Company and Target or any of its Subsidiaries to, the Person otherwise cooperate in any way with, or group (and their respective Representatives) making such Acquisition Proposal; providedknowingly assist, participate in, knowingly facilitate or knowingly encourage any effort by, any person that has made, that prior would reasonably be expected to furnishing make or, to the Knowledge of Target, is considering, formulating or intending on making a Target Alternative Proposal or any indication, proposal or inquiry that would reasonably be expected to lead to a Target Alternative Proposal, except to notify such informationperson as to the existence of this Clause 5.2; or
(iii) expressly waive, Stockholder terminate, amend or modify any provision of any “standstill” or similar obligation of any person with respect to any member of the Target Group, provided that Target will not be (xA) receives prohibited from such Person permitting any person to make a Target Alternative Proposal privately to the Target Board (or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed any committee of the Target Board) or (B) required to take, or be prohibited from taking, any action otherwise prohibited or required by sub-Clauses (i) or (ii) of this Clause 5.2(a) if the Target Board determines, in similar circumstances and good faith (y) provides prior written notice to Spectrum and the Company; provided, furtherafter consultation with its outside legal counsel), that all failure to take such information is provided action or made available to Spectrum and permit such inaction would be inconsistent with the Company (to members of the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third PartyTarget Board’s fiduciary duties under applicable Law.
(b) Notwithstanding anything herein Target shall, and will cause its Subsidiary and their respective Representatives and will use all reasonable endeavours to cause its and their Concert Parties to, immediately cease and cause to be terminated all existing discussions or negotiations with any person conducted heretofore with respect to any Target Alternative Proposal and, subject to its obligations under the contraryIrish Takeover Rules, Section 3.02(a) shall not prohibit immediately terminate all physical and electronic dataroom access previously granted to any such person or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreementits Representatives.
(c) Nothing Notwithstanding the limitations set forth in Clauses 5.2(a) and (b), if Target receives a Target Alternative Proposal which did not or does not result from a breach (except in de minimis respects) of Clauses 5.2(a) and (b), Target may take any or all of the following actions:
(i) contact the person who makes such Target Alternative Proposal (the “Proposer”) to understand the terms and conditions of any such Target Alternative Proposal;
(ii) furnish non-public information to the Proposer and any persons Acting in Concert with the Proposer, their respective potential financing sources and Representatives (provided that all such information has previously been provided to Bidder or is provided to Bidder concurrently with the time it is provided to such person(s)), if, and only if, prior to so furnishing such information, Target receives from the Proposer an executed confidentiality agreement, or as of the date of this Agreement shall apply the Proposer is party to such a confidentiality agreement, containing terms no less restrictive on the Proposer than the terms in the Confidentiality Agreement are restrictive on Bidder and Bidco; provided, however, that if such confidentiality agreement is executed after the date of this Agreement, such confidentiality agreement will permit Target to disclose all information contemplated by Clause 5.2(d) to Bidco; and
(iii) engage in discussions or limit negotiations with the Proposer (and such other persons) with respect to such Target Alternative Proposal, provided that Target will not be permitted to take the action set forth in any way sub-Clauses 5.2(c)(ii) or 5.2(c)(iii) unless the Target Board has determined in good faith (after consultation with Target’s financial advisers and outside legal counsel) that such Target Alternative Proposal is, or could reasonably be expected to lead to, a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction)Target Superior Proposal.
(d) Stockholder agrees Subject to any actions which Target is required to take in order to comply with the Irish Takeover Rules, and provided the terms of any confidentiality agreement entered into by it with the Proposer prior to the date of this Agreement do not prohibit it from doing so (and Target has received advice from its outside legal counsel to that effect), Target will promptly (and in any event within 48 hours of receipt of any Target Alternative Proposal) notify Bidder of the receipt of any Target Alternative Proposal and will indicate the material terms and conditions (including, without limitation, price per share offered and form of consideration) of such Target Alternative Proposal to Bidder, provided, however, that Target will not be required to notify Bidder of the identity of the Proposer, and thereafter will promptly keep Bidder reasonably informed of any material change to the terms of any such Target Alternative Proposal. Subject to any obligations of Target under the Irish Takeover Rules, Target will not, and will cause its Subsidiary not to, enter into any confidentiality agreement with any person following the date of this Agreement that prohibits Target from providing such information to Bidder or complying with its obligations to Bidder under this Agreement.
(e) Except as set forth in Clause 5.2(f) and until satisfaction of the steps set out in Clause 5.2(f), neither the Target Board nor any committee of the Target Board shall:
(i) withdraw (or modify in any manner adverse to Bidder or Bidco), or propose publicly to withdraw (or modify in any manner adverse to Bidder or Bidco), the Scheme Recommendation or the recommendation contemplated by Clause 3.6(c)(iv), as applicable;
(ii) fail to include the Scheme Recommendation in the Scheme Document or the Proxy Statement;
(iii) approve, recommend or declare advisable, or propose publicly to approve, recommend or declare advisable, any Target Alternative Proposal;
(iv) cause or allow any member of the Target Group to execute or enter into any agreement in relation to a Target Alternative Proposal, other than as contemplated by Clause 9.1(a)(ii)(B) or a confidentiality agreement referred to in Clause 5.2(c); or
(v) fail to reaffirm the Scheme Recommendation in a statement complying with Rule 14d-9 or Rule 14e-2(a) under the Exchange Act with regard to a Target Alternative Proposal or in connection with such action by the close of business on the 10th Business Day after the commencement of such Target Alternative Proposal under Rule 14d-9 or Rule 14e-2(a), (any of the foregoing actions in this Clause 5.2(e) being a “Target Change of Recommendation”), it being agreed that the provision by Target to Bidder or Bidco of notice or information in connection with a Target Alternative Proposal or Target Superior Proposal as required or expressly permitted by this Agreement will not, in and of itself, constitute a Target Change of Recommendation.
(f) If the Target Board has concluded, in good faith (after consultation with its outside legal counsel and financial advisers) that:
(i) the relevant Target Alternative Proposal constitutes a Target Superior Proposal; and
(ii) that the failure to make a Target Change of Recommendation would be inconsistent with the Target Directors’ fiduciary duties under applicable Law, Target will provide a written notice to Bidder (a “Superior Proposal Notice”) advising Bidder that Target has received a Target Alternative Proposal and specifying the material terms of such Target Alternative Proposal, and such other information with respect thereto required by Clause 5.2(d) and including written notice of the determination of the Target Board that such Target Alternative Proposal constitutes a Target Superior Proposal. For a period of four days following the time of delivery to Bidder of the Superior Proposal Notice (as it may be extended under the last sentence of this Clause 5.2(f), the “Notice Period”), Bidder will have the opportunity to discuss in good faith the terms and conditions of this Agreement and the Transactions, including an increase in, or modification of, the Consideration, and such other terms and conditions such that the relevant Target Alternative Proposal no longer constitutes a Target Superior Proposal (a “Revised Acquisition”). If, following the expiration of such Notice Period, the Target Board has determined in good faith (after consultation with its outside legal counsel and financial advisers) that the relevant Target Alternative Proposal continues to constitute a Target Superior Proposal, taking into account all changes proposed in writing by Bidder during the Notice Period, the Target Board will provide a further written notice to Bidder to such effect (a “Final Recommendation Change Notice”). If, during the Notice Period any material revision is made to the financial terms or other material terms and conditions of the relevant Target Alternative Proposal in writing, Target shall, promptly following each such revision, deliver a new Superior Proposal Notice to Bidder and comply with the requirements of this Clause 5.2(f) with respect to such new Superior Proposal Notice, except that the Notice Period will be the greater of two Business Days and the amount of time remaining in the initial Notice Period. Notwithstanding any Final Recommendation Change Notice, unless this Agreement has been terminated in accordance with Clause 9, the Target shall hold the Court Meeting and the EGM in accordance with Clause 3.1 for the purposes of obtaining the approval of the Resolutions by the requisite majorities of Target Shareholders, and nothing contained herein shall be deemed to relieve the Target of such obligation.
(g) Nothing contained in this Agreement will prohibit or restrict Target, the Target Board or any committee of the Target Board from making any disclosure to Target Shareholders required by Law or which, in the good faith opinion of the Target Board (after consultation with its outside legal counsel), is required in order to discharge the Target Board’s fiduciary duties, provided that, without to the prior written consent extent any such disclosure is made which constitutes a Target Change of Spectrum, neither it nor any Recommendation the relevant provisions of its Affiliates this Clause 5 shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stockapply.
Appears in 2 contracts
Sources: Transaction Agreement (XOMA Royalty Corp), Transaction Agreement (Mural Oncology PLC)
Non-Solicitation. (a) Stockholder shall not, and shall cause each of its Subsidiaries Affiliates, representatives and agents (including its and their respective directors, officers, employees, agents, investment bankers, attorneys, accountants, consultants and other advisors or representatives) (collectively, its “Representatives”) not to, and shall not authorize or permit any of its Representatives to, directly or indirectly, (i) solicit, initiate initiate, induce, knowingly encourage or knowingly encouragefacilitate the making or submission of any offer, induce proposal, inquiry or facilitate any Acquisition Proposal request that constitutes, or any inquiry, proposal or offer that may would reasonably be expected to result in or lead to to, an Alternative Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s businessengage in, properties, assets, books or records to, continue or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with regarding any Third Party offer, proposal, inquiry or request that is reasonably expected to makeconstitutes, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may would reasonably be expected to result in or lead to, an Alternative Acquisition Proposal with, or furnish any nonpublic information relating to the Company or its Subsidiaries to, any Person (other than Parent, Merger Sub or their respective Representatives) relating to any Alternative Acquisition Proposal or any offer, proposal, inquiry or request that constitutes, or would reasonably be expected to result in or lead to a Superior an Alternative Acquisition Proposal (it being understood that any except, in each case, to notify such communications with any such Third Party shall be limited Person as to the clarification existence of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly 3(b)), or afford any Person (but in other than Parent, Merger Sub or their respective Representatives) access to the businesses, properties, assets, books, records or other non-public information, or to any event within one (1) Business Day) advise personnel, of the Company and Spectrum or its Subsidiaries for the purpose of encouraging, inducing or facilitating or otherwise relating to any Alternative Acquisition Proposal received by Stockholderor any offer, the material terms and conditions proposal, inquiry or request that constitutes, or would reasonably be expected to result in or lead to an Alternative Acquisition Proposal, (iii) approve, endorse or recommend any offer, proposal, inquiry or request that constitutes, or would reasonably be expected to result in or lead to, an Alternative Acquisition Proposal, or (iv) enter into any letter of intent, agreement in principle, memorandum of understanding, or other acquisition agreement, merger agreement or similar agreement with respect to any such offer, proposal, inquiry or request that constitutes, or would reasonably be expected to result in or lead to, an Alternative Acquisition Proposal (including except for an Acceptable Confidentiality Agreement permitted under the Merger Agreement). Stockholder shall, and shall cause its Representatives to, immediately cease and cause to be terminated any material changes theretosolicitations, discussions or negotiations with any Person and its Representatives (other than Parent, Merger Sub and their respective Representatives) and the identity of the Person making relating to any such Alternative Acquisition Proposal or any offer, proposal, inquiry or request that constitutes, or would reasonably be expected to result in or lead to, an Alternative Acquisition Proposal. Without limiting Any violation of the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted foregoing restrictions by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in Representatives shall be deemed to be a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date material breach of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Partyby Stockholder.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 2 contracts
Sources: Voting and Support Agreement (ZeroFox Holdings, Inc.), Voting and Support Agreement (Foster James Christopher)
Non-Solicitation. (a) Stockholder Except as permitted by this Section 5.3, during the period from the date of this Agreement until the earlier of the Effective Time or the valid termination of this Agreement pursuant to ARTICLE 7, the Company shall not, shall cause each of its Subsidiaries not to, and shall direct the Company’s and its Subsidiaries’ respective Representatives acting on behalf or at the direction of the Company or its Subsidiaries not authorize or permit any of its Representatives to, : (i) directly or indirectly, (i) solicit, initiate initiate, or knowingly encourage, induce take any action to facilitate or facilitate encourage the submission of any Acquisition Takeover Proposal or the making of any inquiry, proposal or offer that may would reasonably be expected to lead to an Acquisition any Takeover Proposal, ; (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s businesscontinue, properties, assets, books or records toconduct, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate engage in any discussions or negotiations with with, disclose any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything non-public information relating to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books books, or records of the Company or any of its Subsidiaries to, or knowingly assist, participate in, facilitate, or encourage any effort by, any third party (or its potential sources of financing) relating to: (A) a Takeover Proposal; or (B) any inquiry or proposal that would reasonably be expected to lead to a Takeover Proposal; (iii) except where the Company Board makes a good faith determination, after consultation with its financial advisor and outside legal counsel, that the failure to do so would reasonably be expected to be inconsistent with the fiduciary duties of the Company Board, amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries; (iv) enter into letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or other Contract in each case relating to any Takeover Proposal (excluding any Acceptable Confidentiality Agreements or the agreements contemplated by Section 5.3(b)(ii)) (each, a “Company Acquisition Agreement”); or (v) approve, authorize, agree, or publicly announce any intention to do any of the foregoing. The Company shall, shall cause its Subsidiaries, and shall direct the Company’s and its Subsidiaries’ Representatives acting on behalf or at the direction of the Company or its Subsidiaries to cease immediately and cause to be terminated any and all existing activities, discussions, or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Takeover Proposal and shall request in writing that any third party in possession of non-public information in respect of the Company or any of its Subsidiaries that was furnished by or on behalf of the Company and its Subsidiaries to, and provided access to an electronic data room maintained by the Person Company or group its Representatives in connection with a Takeover Proposal in the last twelve (12) months prior to the date of this Agreement return or destroy (and their respective Representativesconfirm destruction of) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information and request that such third parties direct their Representatives to do the same. Notwithstanding the foregoing, the parties agree that it is provided not a breach of this Agreement for the Company, its Subsidiaries, or made available the Company’s or its Subsidiaries’ respective Representatives to Spectrum and reply to an unsolicited Takeover Proposal to inform such Person that the Company (and its directors and officers and Representatives are subject to the extent a no-shop provision and cannot previously provided or made available) substantially concurrently engage in discussions except in accordance with it being provided or made available to such Third Partythis Agreement.
(b) Notwithstanding anything herein Section 5.3(a), prior to the contraryreceipt of Company Stockholder Approval, the Company Board, directly or indirectly through any Representative, may, subject to Section 3.02(a5.3(c): (i) shall participate in negotiations or discussions with any third party that has made (and not prohibit or limit Stockholder withdrawn) a written Takeover Proposal that did not result from taking any action (or inactiona material breach of Section 5.3(a) that the Company Board believes in good faith, after consultation with its financial advisor and outside legal counsel, is or would reasonably be expected to lead to a Superior Proposal or would reasonably be expected to be inconsistent with the fiduciary duties of the Company Board under applicable Law not constitute a breach by to participate in negotiations or discussions pertaining to such Takeover Proposal; and (ii) thereafter furnish to such third party non-public information relating to the Company, if taken by the Company, Company or any of its Subsidiaries pursuant to an executed confidentiality agreement that constitutes an Acceptable Confidentiality Agreement (unless such third party is already subject to a confidentiality agreement with the Company and such third party agrees to permit the Company to comply with its obligations under this Agreement, including Section 5.3 5.3); provided, in each such case of clauses (i) and (ii) of Section 5.3(b), that the Company Board first shall have determined in good faith, after consultation with its financial advisor and outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with the fiduciary duties of the Merger AgreementCompany Board under applicable Law.
(c) Nothing set forth The Company Board shall not take any of the actions referred to in this Agreement clauses (i) or (ii) of Section 5.3(b) unless the Company shall apply have delivered to or limit Parent a prior written notice advising Parent that it intends to take such action. The Company shall notify Parent promptly (but in any way a change no event later than forty eight (48) hours) after it obtains Knowledge of control of Stockholder the receipt by the Company (or Stockholderany of its Representatives) of any Takeover Proposal or any inquiry that would reasonably be expected to lead to a Takeover Proposal. In such notice, the Company shall identify the third party making, and details of the material terms and conditions of, any such Takeover Proposal, indication or request, including any proposed financing. The Company shall keep Parent informed, on a reasonably current basis, of the status and material terms of any such Takeover Proposal, indication or request, including any material amendments or proposed amendments as to price, proposed financing, and other material terms thereof. The Company shall promptly provide Parent with copies of any non-public information concerning the Company’s ultimate publicly traded parent companyand any of its Subsidiary’s business, as applicable) (whether by virtue present or future performance, financial condition, or results of a mergeroperations, acquisition, consolidation or other similar transaction)provided to any third party to the extent such information has not been previously provided to Parent.
(d) Except as expressly permitted by this Section 5.3(d), neither the Company Board nor any committee thereof shall effect a Company Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement.
(i) Notwithstanding the foregoing, at any time prior to the receipt of Company Stockholder agrees Approval, the Company Board may: (A) effect a Company Adverse Recommendation Change with respect to a Superior Proposal or (B) terminate this Agreement pursuant to Section 7.4(a) in order to enter into a Company Acquisition Agreement with respect to such Superior Proposal; in each case, that did not result from a material breach of this Section 5.3, if: (I) the Company promptly notifies Parent, in writing, at least three (3) Business Days (the “Superior Proposal Notice Period”) before taking the action described in clause (A) or (B) of this Section 5.3(d)(i), of its intention to take such action with respect to such Superior Proposal, which notice shall state expressly that the Company has received a Takeover Proposal that the Company Board intends to declare is a Superior Proposal, and that the Company Board intends to take the action described in clause (A) or (B) of this Section 5.3(d)(i); (II) the Company specifies the identity of the party making the Superior Proposal and the material terms and conditions thereof in such notice and includes an unredacted copy of the Takeover Proposal and attaches to such notice the most current version of any proposed agreement (which version shall be updated on a prompt basis) for such Superior Proposal and any related documents, including financing documents (which financing documents may include customary redactions), to the extent provided by the relevant party in connection with the Superior Proposal; (III) the Company and its Representatives during the Superior Proposal Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of this Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal, if Parent, in its discretion, proposes to make such adjustments (it being agreed that in the event that, without after commencement of the Superior Proposal Notice Period, there is any material revision to the terms of a Superior Proposal, including, any revision in price, the Superior Proposal Notice Period shall be extended, if applicable, to ensure that at least two (2) Business Days remains in the Superior Proposal Notice Period subsequent to the time the Company notifies Parent of any such material revision (it being understood that there may be multiple extensions)); and (IV) the Company Board determines in good faith, after consulting with its financial advisor and outside legal counsel, that such Takeover Proposal continues to constitute a Superior Proposal (after taking into account any adjustments made by Parent during the Superior Proposal Notice Period in the terms and conditions of this Agreement) and that the failure to take such action would reasonably be expected to be inconsistent with the fiduciary duties of the Company Board under applicable Law.
(ii) Notwithstanding the foregoing, at any time prior written consent to the receipt of SpectrumCompany Stockholder Approval, neither it nor any the Company Board may effect a Company Adverse Recommendation Change with respect to an Intervening Event, if: (A) the Company promptly notifies Parent, in writing (email to Parent and Parent’s outside counsel pursuant to Section 8.2 being deemed sufficient), at least three (3) Business Days (the “Intervening Event Notice Period”) before effecting a Company Adverse Recommendation Change of its Affiliates intention to take such action with respect to such Intervening Event, which notice shall purchaseadvise Parent of the Intervening Event, directly including a reasonable description of the underlying terms and circumstances giving rise to such Intervening Event (and the reasons for taking such action), and that the Company Board intends to effect a Company Adverse Recommendation Change; (B) the Company and its Representatives during the Intervening Event Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of this Agreement that obviates the need for the Company Board to effect, or indirectlycause the Company to effect, a Company Adverse Recommendation Change as a result of such Intervening Event; and (C) the Company Board determines in good faith, after consulting with its financial advisor and outside legal counsel, that an Intervening Event has occurred and that the failure to effect a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the Company Board under applicable Law.
(e) Nothing contained herein shall prevent the Company Board or any shares committee thereof from disclosing to the Company’s stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act with regard to a Takeover Proposal, if the Company determines, after consultation with its financial advisor and outside legal counsel, that failure to disclose such position would reasonably be expected to be inconsistent with the fiduciary duties of Saturn Common Stock the Company Board under applicable Law; provided, however, that any public disclosure (other than any “stop, look and listen” statement made under Rule 14d-9(f) under the Exchange Act) by the Company or securities the Company Board (or any committee thereof) relating to any determination, position or other action by the Company, the Company Board or any committee thereof with respect to any Takeover Proposal shall be deemed to be a Company Adverse Recommendation Change unless the Company Board expressly and publicly reaffirms the Company Board Recommendation in such disclosure. Nothing in this Agreement shall restrict the Company or the Company Board (or a committee thereof) from making a factually accurate public statement that (A) describes the Company’s receipt of Spectrum convertible into a Takeover Proposal; (B) identifies the Person or exchangeable group of Persons making such Takeover Proposal; (C) provides the material terms of such Takeover Proposal; or exercisable for shares (D) describes the operation of Saturn Common Stockthis Agreement with respect thereto and any such statement will not, in any case, be deemed to be (1) an adoption, approval or recommendation with respect to such Takeover Proposal; or (2) a Company Adverse Recommendation Change.
Appears in 2 contracts
Sources: Merger Agreement (Emcore Corp), Merger Agreement (Emcore Corp)
Non-Solicitation. Subject to Section 8, Stockholder shall, and shall cause its Representatives to, immediately cease any and all existing discussions or negotiations with any parties (aor provision of any nonpublic information to any parties) conducted by or on behalf of such Persons heretofore with respect to any Acquisition Proposal or potential Acquisition Proposal. Until the termination of this Agreement pursuant to, and in accordance with, Section 7, Stockholder shall not, shall cause each of its Subsidiaries not to, and Stockholder shall not authorize or knowingly permit any of its Representatives to, directly or indirectly, : (i) solicit, initiate or knowingly encourage, induce encourage or knowingly facilitate any Acquisition Proposal or any inquiry, proposal or offer that may offer, or the making, submission or announcement of any inquiry, proposal or offer, which constitutes or could reasonably be expected to lead to an Acquisition Proposal, (ii) except to the extent the Company is permitted to do so under Section 6.2(b) of the Merger Agreement, enter into, continue or otherwise participate in discussions or any negotiations regarding, furnish to any Person any nonpublic information regarding relating to the Company or any Company Subsidiary in connection with, or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the businesspersonnel, properties, assets, books or records of the Company or any Company Subsidiary in connection with, an Acquisition Proposal, or (iii) resolve, propose or agree to do any of the foregoing. Without limiting the foregoing, it is agreed that any violation of the foregoing restrictions by any Representative of Stockholder shall be deemed to be a breach of this Section 3(b) by Stockholder. For purposes of this Section 3(b), the term “Person” shall not include Parent or any Parent Subsidiary or other affiliate of Parent or any of their Representatives. Notwithstanding anything to the contrary contained in this Agreement, Stockholder and its Subsidiaries toRepresentatives may in any event inform a Person that has made or, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by knowledge of the Company, if taken by the Companyis considering making any inquiry, pursuant indication of interest, proposal or offer relating to Section 5.3 an Acquisition Proposal of the Merger Agreement.
(c) Nothing set forth in provisions of this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transactionSection 3(b).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 2 contracts
Sources: Support Agreement (Kindred Biosciences, Inc.), Support Agreement (Elanco Animal Health Inc)
Non-Solicitation. (a) Stockholder From and after the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article VIII, neither TeleCorp nor Tritel shall, nor shall not, shall cause each they permit any of its ------------ their Subsidiaries not to, and nor shall not they authorize or permit any of its Representatives their respective officers, directors or employees to, and shall use their commercially reasonable efforts to cause any investment banker, financial advisor, attorney, accountant, or other representatives retained by them or any of their respective Subsidiaries not to, directly or indirectly, through any other Person, (i) solicit, initiate or knowingly encourageencourage (including by way of 104 furnishing information) any proposals that constitute, induce or facilitate any Acquisition Proposal or any inquiry, proposal or offer that may could reasonably be expected to lead to result in, a proposal or offer for an Acquisition Proposal, or (ii) furnish engage in negotiations or discussions concerning, or provide any nonpublic non-public information regarding the Company TeleCorp or afford access Tritel, as applicable, to the Company’s business, properties, assets, books any person or records entity relating to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in agree to, approve or recommend to its stockholders any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided thatprovided, notwithstanding anything to the contrary however, that nothing -------- ------- contained in this AgreementAgreement shall prevent TeleCorp or its Board of Directors or Tritel or its Board of Directors, any such Person as the case may be, from (A) seek to clarify the terms and conditions of furnishing non- public information to, or entering into discussions with, any inquiry, proposal person or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior entity in connection with an unsolicited bona fide written Acquisition Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party person or entity (including a new and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any unsolicited Acquisition Proposal received by StockholderTeleCorp or Tritel after the execution of this Agreement from a person or entity whose initial contact with TeleCorp or Tritel may have been solicited by TeleCorp or Tritel, respectively, prior to the execution of this Agreement) if and only to the extent that (1) the Board of Directors of TeleCorp or the Board of Directors of Tritel, as the case may be, believes in good faith (after consultation with its financial advisors) that such Acquisition Proposal would, if consummated, result in a transaction more favorable to TeleCorp stockholders or Tritel stockholders, respectively, from a financial point of view than the transactions contemplated by this Agreement (any such more favorable Acquisition Proposal being referred to in this Agreement as a "Superior Proposal") and the ----------------- Board of Directors of TeleCorp or the Board of Directors of Tritel determines in good faith after consultation with its outside legal counsel that such action could be reasonably deemed necessary for the Board of Directors of TeleCorp or the Board of Directors of Tritel, as the case may be, to comply with its fiduciary duties to its stockholders under applicable law and (2) prior to furnishing such non-public information to, or entering into discussions or negotiations with, such Person or entity, such Board of Directors receives from such Person or entity an executed non-disclosure 105 agreement with terms no less favorable to such party than those contained in the Confidentiality Agreement, (B) complying with Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, with regard to an Acquisition Proposal or (C) making any disclosure to its stockholders if, in the good faith judgment of the Board of Directors of such party, after receipt of advice from outside counsel, failure to disclose would result in a reasonable likelihood that such Board of Directors would breach its duties to such party's stockholders under applicable law. Each of TeleCorp and Tritel shall promptly notify the other party and AT&T orally and in writing of any request for information or of any proposal in connection with an Acquisition Proposal, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) request or proposal and the identity of the Person person making any such Acquisition Proposalrequest or proposal. Without limiting Each of TeleCorp and Tritel will keep the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such other party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors AT&T reasonably informed of the Company determines in good faith status (after consultation including amendments or proposed amendments) of such request or proposal on a current basis. Each of TeleCorp and Tritel shall immediately cease and terminate any existing solicitation, initiation, encouragement activity, discussion or negotiation with outside counsel and a financial advisor of nationally recognized reputation) to be, any persons conducted heretofore by them or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information their representatives with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Partyforegoing.
(b) Notwithstanding anything herein Each of TeleCorp and Tritel (i) agrees not to release any Third Party (as defined below) from, or waive any provision of, or fail to enforce, any standstill agreement or similar agreement to which it is a party related to, or which could affect, an Acquisition Proposal and (ii) acknowledges that the contrary, Section 3.02(aprovisions of clause (i) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 are an important and integral part of the Merger this Agreement.
(c) Nothing set forth in For purposes of this Agreement shall apply Agreement, "Acquisition Proposal" means a -------------------- proposal or intended proposal, regarding any of (i) a transaction or series of transactions pursuant to or limit in which any way a change of control of Stockholder Person (or Stockholder’s ultimate publicly traded parent company, as applicablegroup of Persons) other than any party hereto (whether by virtue of "Party") and its Subsidiaries (a merger, acquisition, consolidation "Third Party") acquires or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchasewould ----- ----------- acquire, directly or indirectly, any beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of more than twenty percent (20%) of the outstanding shares of Saturn Common Stock TeleCorp or Tritel, as the case may be, whether from TeleCorp or Tritel, as the case may be, or pursuant to a tender offer or exchange offer or otherwise, (ii) any acquisition or proposed acquisition of, or business combination with TeleCorp or Tritel, as applicable, by a merger or other business combination (including any so-called "merger-of-equals" and whether or not TeleCorp or Tritel, as the case may be, is the entity surviving any such merger or business combination), or (iii) any other transaction pursuant to which any Third Party acquires or would acquire, directly or indirectly, control of assets (including for this purpose the outstanding equity securities of Spectrum convertible into Subsidiaries of TeleCorp or exchangeable Tritel, as the case may be, and any entity surviving the merger or exercisable business combination including any of them) of TeleCorp or Tritel, as the case may be, for consideration equal to twenty percent (20%) or more of the fair market value of all of the outstanding shares of Saturn Common StockTeleCorp or twenty percent (20%) or more of the fair market value of all of the outstanding shares of Tritel, as the case may be, on the date of this Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization and Contribution (Telecorp PCS Inc), Agreement and Plan of Reorganization and Contribution (Telecorp PCS Inc)
Non-Solicitation. (a) Stockholder Augusta shall, and shall direct and cause its subsidiaries and its and their Representatives to, immediately cease and cause to be terminated any existing solicitation, encouragement discussion or negotiation with any person (other than the Offeror or its Representatives) with respect to any potential Acquisition Proposal, whether or not initiated by Augusta, and in connection therewith, Augusta will discontinue access to any data rooms (virtual or otherwise). Augusta shall not amend, modify or waive any confidentiality agreement, standstill agreement or standstill provisions contained in any agreements entered into by Augusta with other parties relating to a potential Acquisition Proposal. Within 48 hours following the execution of this Agreement, Augusta shall request the return or destruction of all information provided to any third parties in connection with any potential Acquisition Proposal and shall use commercially reasonable efforts to ensure that such requests, and any other covenants (including standstill provision) are honoured in accordance with the terms of confidentiality agreements, where applicable. Augusta has provided the Offeror with a copy of the form of each confidentiality agreement executed by any person seeking access to Augusta’s data room following February 10, 2014.
(b) Except as otherwise provided in this Article 6, Augusta shall not, shall cause each of its Subsidiaries not to, and shall not authorize or permit any of its subsidiaries or its or their Representatives to, take any action of any kind that would reasonably be expected to, directly or indirectly, interfere with the successful and timely completion of the Contemplated Transactions, including any action to, directly or indirectly through any of its subsidiaries or its or their Representatives:
(i) solicit, initiate or knowingly encourageassist, induce or facilitate any Acquisition Proposal or any inquiryinitiate, proposal or offer that may reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, encourage or otherwise knowingly cooperate in facilitate (including by way of furnishing information, permitting any way withvisit to any facilities or properties of Augusta or any of its subsidiaries or entering into any Contract) the initiation of any inquiries, any Third Party that is reasonably expected to make, offers or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, proposals regarding an Acquisition Proposal; provided that, notwithstanding anything for greater certainty, Augusta may advise any person making an unsolicited Acquisition Proposal that such Acquisition Proposal does not constitute a Superior Proposal when the Augusta Board of Directors has so determined;
(ii) engage or participate in or otherwise facilitate any discussions or negotiations with, or provide any information to any person regarding, an Acquisition Proposal;
(iii) withdraw, modify or qualify (or propose to do so), in a manner adverse to the contrary Offeror, the approval or recommendation of the Augusta Board of Directors of the Offer or this Agreement;
(iv) approve or recommend or remain neutral or propose publicly to approve or recommend or remain neutral with respect to any Acquisition Proposal (it being understood that publicly taking no position or a neutral position with respect to an Acquisition Proposal for a period of no more than five (5) business days following the public announcement of such Acquisition Proposal shall not be considered to be in violation of this Section 6.1(b)(iv)), or
(v) accept, recommend, approve or enter into any letter of intent, agreement in principle, agreement, understanding or arrangement in respect of an Acquisition Proposal or providing for the payment of any break, termination or other fees or expenses to any person in the event that Augusta completes the transactions contemplated in this Agreement or any other transaction with the Offeror or any of its affiliates agreed to prior to any termination of this Agreement, whether formal or informal.
(c) Augusta shall, as soon as practicable and in any event within 24 hours following receipt thereof notify the Offeror, at first orally and then as soon as possible thereafter within such Person may (A) seek to clarify the terms and conditions 24 hour period in writing, of any inquiry, proposal or offer (or any amendment thereto) or request relating to determine whether such or constituting an Acquisition Proposal, any request for discussions or negotiations, and/or any request for non-public information relating to Augusta or for access to properties, books and records or a list of the Augusta Shareholders or other Augusta Securityholders of which Augusta, its subsidiaries, or its or their Representatives are or become aware, or any amendments to the foregoing. Such notice shall include the material terms and conditions of, and the identity of the person making, any inquiry, proposal or offer may reasonably (including any amendment thereto), and shall include, in the case of a proposal or offer, copies of any such proposal or offer or any amendment to any of the foregoing. Augusta shall keep the Offeror informed of the status, including any change to the material terms, of any such proposal or offer or any amendment to the foregoing, and will respond promptly to all reasonable inquiries by the Offeror with respect thereto.
(d) Notwithstanding Section 6.1(a) or any other provision of this Agreement to the contrary, if after the date of this Agreement, Augusta receives a request for material non-public information in connection with a potential Acquisition Proposal or receives a bona fide Acquisition Proposal (that was not solicited, encouraged or facilitated after the date hereof in contravention of Section 6.1(a)), and (i) the Augusta Board of Directors determines in good faith after consultation with its financial advisors and its legal counsel, that such Acquisition Proposal would, if consummated in accordance with its terms (but not assuming away any risk of non-completion), be expected to lead to a Superior Proposal (it being understood disregarding clause (vi) of the definition thereof), and (ii) the failure to provide the person making such Acquisition Proposal with access to such information regarding Augusta would be inconsistent with the fiduciary duties of the Augusta Board of Directors, then, and only then, Augusta may provide such person with access to information regarding Augusta and its subsidiaries, subject to the execution of a confidentiality agreement (if one has not already been entered into) providing for standstill provisions (which shall not be waived or modified without the prior written approval of the Offeror) other than to effect a Superior Proposal with the consent of the Augusta Board of Directors in compliance with this Agreement, provided however that Augusta sends a copy of any such communications with any such Third Party shall be limited confidentiality agreement to the clarification Offeror promptly upon its execution and the Offeror is provided with a list and, as requested by the Offeror, copies, of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect information provided to such inquiryperson and is, proposal or offer or as requested by the Offeror, immediately provided with access to similar information to which such person was provided.
(ye) such Person’s view or position with respect thereto) Augusta shall ensure that its subsidiaries and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by its and their Representatives are aware of, and agree to be bound by, the provisions of this Section 3.02. Stockholder 6.1, and Augusta shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from be responsible for any breach of this Section 3.02 6.1 by such subsidiaries and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 2 contracts
Sources: Support Agreement (HudBay Minerals Inc.), Support Agreement (Augusta Resource CORP)
Non-Solicitation. (a) Stockholder From the date hereof and prior to the earlier of the Effective Time and the Termination Date, each of the Partnership and the General Partner shall not, and each of them shall cause each their respective Subsidiaries, and the respective directors, officers, employees of its the Partnership, the General Partner and such Subsidiaries not to, and shall use its reasonable best efforts to cause the Representatives of the Partnership, the General Partner and such Subsidiaries not authorize or permit any of its Representatives to, directly or indirectly, : (i) solicit, initiate initiate, knowingly encourage or knowingly encourage, induce or facilitate any Acquisition Proposal inquiries or the making of any inquiry, proposal or offer that may constitutes, or would reasonably be expected to lead to to, an Acquisition Proposal, (ii) furnish any nonpublic non-public information regarding the Company Partnership or any of its Subsidiaries or afford access to the Company’s business, properties, assets, books or records toof the Partnership or any of its Subsidiaries, to any person (other than Parent, Merger Sub, GP Merger Sub or otherwise knowingly cooperate their respective directors, officers, employees, affiliates or Representatives) in connection with or in response to an Acquisition Proposal or any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, inquiries regarding an Acquisition Proposal, or (iii) engage or participate in any discussions or negotiations with any Third Party that is reasonably expected person (other than Parent, Merger Sub, GP Merger Sub or their respective directors, officers, employees, affiliates or Representatives) with respect to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that(iv) enter into any letter of intent, notwithstanding anything term sheet, memorandum of understanding, merger agreement, acquisition agreement, exchange agreement or any other agreement (whether binding or not) with respect to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquirythat constitutes, proposal or offer may would reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiryto, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal or requiring the Partnership to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement or (v) agree to do any of the foregoing. Nothing in this Section 5.4 shall prohibit the Partnership, or the GP Board, directly or indirectly through any officer, employee or Representative, from informing any person that the Partnership is party to this Agreement and informing such person of the restrictions imposed by that are set forth in this Section 5.4.
(b) Following the provisions execution of this Section 3.02. Stockholder Agreement, each of the Partnership and the General Partner shall, and each of them shall promptly (but in any event within one (1) Business Day) advise cause their respective Subsidiaries, and the Company and Spectrum respective directors, officers, employees of any Acquisition Proposal received by Stockholderthe Partnership, the material terms General Partner and conditions of any such Acquisition Proposal (including any material changes thereto) Subsidiaries to, and shall use its reasonable best efforts to cause the identity Representatives of the Person making Partnership, the General Partner and such Subsidiaries to, immediately cease and terminate any such Acquisition Proposal. Without limiting discussions existing as of the foregoing, it is agreed that, if any Representative date of Stockholder this Agreement between the Partnership or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective officers, directors, employees or Representatives and any person (other than Parent, Merger Sub, GP Merger Sub or any of their respective officers, directors, employees or Representatives) making such that relate to any Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth As used in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Energy Transfer LP), Merger Agreement (Enable Midstream Partners, LP)
Non-Solicitation. Each Stockholder shall not and shall cause its Representatives not to directly or indirectly (a) Stockholder shall notsolicit, shall cause each initiate, or knowingly encourage the submission of, any Acquisition Proposal, (b) publicly approve or recommend, or publicly propose that the Company approve or recommend, any Acquisition Proposal, (c) enter into any agreement, agreement in principle or letter of intent with respect to or accept any Acquisition Proposal, (d) other than to inform any Person of the existence of the provisions contained herein or in Section 6.5 of the Merger Agreement, participate or engage in any discussions or negotiations with, or furnish any information concerning the Company or any of its Subsidiaries not to, and shall not authorize or permit any of its Representatives to, directly or indirectly, (i) solicit, initiate or knowingly encourage, induce or facilitate any Third Party relating to an Acquisition Proposal or any inquiry, proposal or offer request for information that may reasonably be expected to lead to an Acquisition Proposal, (iie) furnish make any nonpublic information regarding public statement or proposal inconsistent with the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition ProposalBoard Recommendation, or (iiif) participate in agree to do any of the foregoing; provided, however, that notwithstanding the foregoing, each Stockholder may, and may authorize and permit any of its Affiliates and/or Representatives to (i) enter into discussions or negotiations with any Third Party that is reasonably expected respect to makethe Stockholders’ entry into a voting, tender, support or has made, other similar agreement with respect to an Acquisition ProposalProposal (and keep the Company informed of the status of such discussions or negotiations, regarding an Acquisition Proposal; provided thatincluding, notwithstanding anything providing confirmation to the contrary in this Company of such Stockholders’ willingness to enter into such voting, tender, support or other similar agreement) if requested to do so by the Company or its Representatives but only to the extent the Company, its Subsidiaries or their respective Affiliates and/or Representatives are permitted, under Section 6.5 of the Merger Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal have discussions or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiryAcquisition Proposal and/or (ii) take any actions necessary to comply with all applicable Laws, proposal including its obligations under Section 13(d) of the Exchange Act. Notwithstanding any other provisions of this Agreement (including Sections, 2 and 3, and this Section 11), each Stockholder may enter into any voting, tender, support or offer or (y) such Person’s view or position similar agreement with respect thereto) and (B) inform any Person that makes to an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise concurrently with the Company and Spectrum of any Acquisition Proposal received by Stockholder, terminating the material terms and conditions of any such Acquisition Proposal (including any material changes theretoMerger Agreement pursuant to Section 6.5(d) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute entering into a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information definitive agreement with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, however, that prior to furnishing any such informationvoting, Stockholder (x) receives from such Person tender, support or group an executed confidentiality similar agreement containing shall not contain terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and the aggregate (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (taking into account any changes to the extent not previously provided transaction structure or made availableform of consideration) substantially concurrently with it being provided or made available materially more favorable to the counterparty to such Third Party.
(b) Notwithstanding anything herein to agreement than the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing terms set forth in this Agreement and, for the avoidance of doubt, it shall apply be deemed materially more favorable to the counterparty if any such agreement does not terminate on the same date that the definitive agreement with respect to such Acquisition Proposal is terminated. For the avoidance of doubt, no officer, director, employee, agent or limit advisor of the Company, its Subsidiaries or Affiliates (in each case, in their capacities as such) shall be deemed to be a representative or Affiliate of any way a change Stockholder for purposes of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction)this Section 11.
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 2 contracts
Sources: Voting Agreement (Power One Inc), Voting Agreement (Silver Lake Sumeru Fund LP)
Non-Solicitation. (a) Stockholder The Company shall not, and shall cause each of its Subsidiaries not to, and shall not authorize or knowingly permit its and its Subsidiaries’ directors, officers, employees, advisors and investment bankers (with respect to any of its Representatives Person, the foregoing Persons are referred to herein as such Person’s “Representatives”) to, directly or indirectly, (i) solicit, initiate or knowingly encourage, induce take any action to facilitate or facilitate encourage the submission of any Company Acquisition Proposal or the making of any inquiry, proposal or offer that may could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iiiii) participate subject to Section 5.4(b), (A) conduct or engage in any discussions or negotiations with with, disclose any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything non-public information relating to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and or any of its Subsidiaries to, or knowingly assist, participate in, facilitate or encourage any effort by, any third party that is seeking to make, or has made, any Company Acquisition Proposal, (B) (1) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Person Company or group any of its Subsidiaries or (2) approve any transaction under, or any third party becoming an “interested stockholder” under, Section 203 of the DGCL, or (C) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Company Acquisition Proposal (each, a “Company Acquisition Agreement”). The Company shall, and shall cause its Subsidiaries to cease immediately and cause to be terminated, and shall not authorize or knowingly permit any of its or their Representatives to continue, any and all existing activities, discussions or negotiations, if any, with any third party conducted prior to the date hereof with respect to any Company Acquisition Proposal and shall use its reasonable best efforts to cause any such third party (or its agents or advisors) in possession of non-public information in respect of the Company or any of its Subsidiaries that was furnished by or on behalf of the Company and its Subsidiaries to return or destroy (and their respective Representativesconfirm destruction of) making such Acquisition Proposal; provided, that prior to furnishing any all such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein Section 5.4(a), prior to the contraryreceipt of the Company Stockholder Approval, the Company Board, directly or indirectly through any Representative, may, subject to Section 3.02(a5.4(c) (i) participate in negotiations or discussions with any third party that has made (and not withdrawn) a bona fide, unsolicited Company Acquisition Proposal in writing that the Company Board believes in good faith, after consultation with outside legal counsel and its financial advisor, constitutes or could reasonably be expected to result in a Superior Company Proposal, (ii) thereafter furnish to such third party non-public information relating to the Company or any of its Subsidiaries pursuant to an executed confidentiality agreement (a copy of which confidentiality agreement shall not prohibit or limit Stockholder from taking be promptly provided (but in any event within twenty-four (24) hours of the execution thereof) for informational purposes only to Parent), (iii) following receipt of and on account of a Superior Company Proposal, make a Company Adverse Recommendation Change and/or (iv) take any action that any court of competent jurisdiction orders the Company to take (or inactionwhich order remains unstayed), but in each case referred to in the foregoing clauses (i) through (iii), only if the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would not constitute a breach by be inconsistent with the Company, if taken by the Company, pursuant to Section 5.3 of the Merger AgreementCompany Board’s fiduciary duties under applicable Law.
(c) Nothing set forth The Company shall notify Parent promptly (but in this Agreement no event later than forty-eight (48) hours) after receipt by the Company (or any of its Representatives) of any Company Acquisition Proposal, any inquiry that would reasonably be expected to lead to a Company Acquisition Proposal, any request for non-public information relating to the Company or any of its Subsidiaries or for access to the business, properties, assets, books or records of the Company or any of its Subsidiaries by any third party. In such notice, the Company shall apply to identify the third party making, and details of the status and material terms and conditions of, any such Company Acquisition Proposal, indication or limit request. The Company shall keep Parent fully informed, on a current basis (but in any way a event within twenty-four (24) hours of any change thereto), of control the material terms of Stockholder any such Company Acquisition Proposal, indication or request, including any material amendments or proposed amendments as to price and other material terms thereof. The Company shall provide Parent with at least forty-eight (48) hours prior notice of any meeting of the Company Board (or Stockholdersuch lesser notice as is provided to the members of the Company Board) at which the Company Board is reasonably expected to consider any Company Acquisition Proposal. The Company shall promptly provide Parent with any material non-public information concerning the Company’s ultimate publicly traded parent companybusiness, as applicable) (whether by virtue present or future performance, financial condition or results of a merger, acquisition, consolidation or other similar transaction)operations provided to any third party that has not been previously provided to Parent.
(d) Except as set forth in this Section 5.4(d), the Company Board shall not make any Company Adverse Recommendation Change or enter into (or permit any Subsidiary to enter into) a Company Acquisition Agreement. Notwithstanding the foregoing, at any time prior to the receipt of the Company Stockholder agrees Approval:
(i) the Company Board may make a Company Adverse Recommendation Change with respect to a Superior Company Proposal or cause the Company to terminate this Agreement in order to enter into (or permit or cause any Subsidiary of the Company to enter into) a Company Acquisition Agreement if: (A) the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with the Company Board’s fiduciary duties under applicable Law, (B) the Company promptly notifies Parent, in writing, at least five (5) days (the “Superior Company Proposal Notice Period”) before taking such action of its intention to do so, which notice shall state expressly that the Company has received a Company Acquisition Proposal that the Company Board intends to declare a Superior Company Proposal and that the Company Board intends to make a Company Adverse Recommendation Change and/or the Company intends to terminate this Agreement in order to enter into (or permit or cause any Subsidiary of the Company to enter into) a Company Acquisition Agreement; (C) the Company attaches to such notice the most current version of the proposed agreement (which version shall be updated on a prompt basis if and to the extent there are any subsequent material changes to such agreement) and the identity of the third party making such Superior Company Proposal; (D) the Company negotiates, and uses its reasonable best efforts to cause its Representatives to negotiate, with Parent (to the extent requested by Parent) in good faith during the Superior Company Proposal Notice Period to make adjustments with respect to the terms and conditions of this Agreement (it being agreed that in the event that, without after commencement of the prior written consent Superior Company Proposal Notice Period, if there is any material revision to the terms of Spectruma Superior Company Proposal, neither including any revision in price, the Superior Company Proposal Notice Period shall be extended, if applicable, to ensure that at least two (2) days remain in the Superior Company Proposal Notice Period subsequent to the time the Company notifies Parent of any such material revision (it nor being understood that there may be multiple extensions)); and (E) at or after 5:00 p.m. Eastern Time on the last day of the Superior Company Proposal Notice Period, the Company Board determines in good faith, after consulting with outside legal counsel and its financial advisor, that such Company Acquisition Proposal continues to constitute a Superior Company Proposal after taking into account any adjustments in the terms and conditions of this Agreement agreed by Parent in writing during the Superior Company Proposal Notice Period;
(ii) the Company Board may make a Company Adverse Recommendation Change with respect to a Company Intervening Event if: (A) the Company Board determines in good faith, after consultation with outside legal counsel, that the failure to take such action would be inconsistent with the Company Board’s fiduciary duties under applicable Law, (B) the Company promptly notifies Parent, in writing, at least five (5) days (the “Company Intervening Event Notice Period”) before taking such action of its Affiliates intention to do so, which notice shall purchasespecify the reasons therefor; (C) the Company (1) negotiates, directly and uses its reasonable best efforts to cause its Representatives to negotiate, with Parent (to the extent requested by Parent) in good faith during the Company Intervening Event Notice Period to make adjustments with respect to the terms and conditions of this Agreement so that the Company Board no longer determines that the failure to make a Company Adverse Recommendation Change in response to such Company Intervening Event would be inconsistent with the Company Board’s fiduciary duties under applicable Law and (2) permits Parent and its Representatives to make a presentation to the Company Board regarding this Agreement and any adjustments with respect thereto (to the extent Parent desires to make such presentation) and (D) at or indirectlyafter 5:00 p.m. Eastern Time on the last day of the Company Intervening Event Notice Period, the Company Board determines in good faith, after consulting with outside legal counsel and its financial advisor, that a failure to make such a Company Adverse Recommendation Change would still be inconsistent with the Company Board’s fiduciary duties under applicable Law after taking into account any shares adjustments in the terms and conditions of Saturn Common Stock this Agreement agreed by Parent in writing during the Company Intervening Event Notice Period.
(e) (i) Nothing contained in this Section 5.4 shall prevent the Company Board from disclosing to the Company’s stockholders a position contemplated by Rule 14d-9, Rule 14e-2(a) or securities Item 1012(a) of Spectrum convertible into Regulation M-A promulgated under the Exchange Act and (ii) no disclosure that the Company Board determines, after consultation with outside legal counsel, that it or exchangeable or exercisable for shares the Company is required to make under applicable Law will constitute a violation of Saturn Common Stockthis Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Isle of Capri Casinos Inc), Merger Agreement (Eldorado Resorts, Inc.)
Non-Solicitation. (a1) Stockholder Except as provided in this Article 5, the Company and the Subsidiary shall not, and none of the Company’s or the Subsidiary’s directors and officers shall, and the Company shall cause each of its Subsidiaries and the Subsidiary’s investments bankers, attorneys, accountants and other advisors or representatives (such directors, officers, investments bankers, attorneys, accountants and other advisors or representatives, collectively, “Representatives”) not to, and shall not authorize or permit any of its Representatives to, directly or indirectly, :
(ia) solicit, initiate assist, initiate, encourage or otherwise knowingly encouragefacilitate (including by way of furnishing or providing copies of, induce access to, or facilitate disclosure of, any Acquisition Proposal confidential information, properties, facilities, books or records of the Company or the Subsidiary) any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, ;
(b) enter into or (iii) otherwise engage or participate in or knowingly facilitate any discussions or negotiations with any Third Party Person (other than with the Purchaser and the Parent or any Person acting jointly or in concert with the Purchaser or the Parent) regarding any inquiry, proposal or offer that is constitutes or may reasonably be expected to makeconstitute or lead to, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything for greater certainty, the Company shall be permitted to advise any Person making an Acquisition Proposal that the Board has determined that such Acquisition Proposal does not constitute or is not reasonably expected to constitute or lead to a Superior Proposal;
(c) make a Change in Recommendation;
(d) accept, approve, endorse or enter into or publicly propose to accept, approve, endorse or enter into (other than a confidentiality agreement permitted by and in accordance with Section 5.3) any agreement in respect of an Acquisition Proposal; or
(e) authorize any of or commit to or agree to do any of the foregoing.
(2) The Company shall, and shall cause the Subsidiary and its Representatives to, immediately cease and terminate, any solicitation, encouragement, discussion or negotiation commenced prior to the contrary in date of this Agreement, Agreement with any such Person may (Aother than with the Purchaser and the Parent and their Representatives) seek with respect to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquirythat constitutes, proposal or offer may reasonably be expected to constitute or lead to, an Acquisition Proposal, and in connection therewith, the Company will:
(a) promptly discontinue access to a Superior Proposal (it being understood that and disclosure of all confidential information, including any such communications with data room and any such Third Party shall be limited access to the clarification properties, facilities, books and records of the original inquiry Company or proposal made by such Third Party of the Subsidiary; and
(b) within two (2) Business Days, request (i) the return or destruction of all copies of any confidential information regarding the Company or the Subsidiary provided to any Person (other than the Purchaser and shall not include (xthe Parent) any negotiations or similar discussions with since August 1, 2020 in respect to such inquiryof a possible Acquisition Proposal, proposal or offer or (y) such Person’s view or position with respect thereto) and (Bii) inform any Person that makes an Acquisition Proposal the destruction of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise all material including or incorporating or otherwise reflecting such confidential information regarding the Company or the Subsidiary, using its commercially reasonable efforts to ensure that such requests are complied with in accordance with the terms of such rights.
(3) The Company represents and Spectrum warrants as of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and that, in the 12 months prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach date of this Section 3.02 and that the board of directors of Agreement, neither the Company determines in good faith nor the Subsidiary (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, through any shares of Saturn Common Stock its or securities their Representatives or otherwise) has waived any standstill, confidentiality, non-disclosure, non-solicitation, business purpose, use or similar agreement or restriction to which the Company or the Subsidiary is a party. The Company agrees that it shall (i) use reasonable best efforts to enforce any confidentiality, standstill or similar agreement or restriction to which the Company or the Subsidiary is a party and (ii) not release any Person from, or waive, amend, suspend or otherwise modify any Person’s obligations respecting the Company, or the Subsidiary, under any confidentiality, standstill or similar agreement or restriction to which the Company or the Subsidiary is a party (it being acknowledged by the Parent and Purchaser that the automatic termination or release of Spectrum convertible any standstill restrictions of any such agreements as a result of the entering into or exchangeable or exercisable for shares and announcement of Saturn Common Stockthis Agreement shall not be a violation of this Section 5.1(3)).
Appears in 2 contracts
Sources: Arrangement Agreement (Spire Global, Inc.), Arrangement Agreement (Spire Global, Inc.)
Non-Solicitation. (a) Stockholder shall notWithout limitation on the Company's other obligations under this Agreement, shall cause each of its Subsidiaries not to, and shall not authorize or permit the Company agrees that neither it nor any of its Representatives subsidiaries nor any of its officers and directors or the officers and directors of any of its subsidiaries will, and that it will not permit its or its subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its subsidiaries) to, directly or indirectly, except as permitted by Section 5.04(c) (i) initiate, solicit, initiate or knowingly encourage, induce encourage or facilitate any Acquisition Proposal inquiries or the making of any inquiry, proposal or offer that may reasonably be expected with respect to, or a transaction to lead effect, a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution, extraordinary dividend or similar transaction involving it or any of its Significant Subsidiaries (as defined in Section 9.03), or any purchase or sale of 10% or more of the consolidated assets (including without limitation stock of its subsidiaries) of the Company and its subsidiaries taken as a whole, or any purchase or sale of, or tender or exchange offer for, the equity securities of the Company or any of its subsidiaries that, if consummated, would result in any person (or the stockholders of such person) beneficially owning securities representing 20% or more of the total voting power of the Company (or of the surviving parent entity in such transaction) or any of its Significant Subsidiaries (any such proposal, offer or transaction (other than a proposal or offer made by Parent or an affiliate thereof) being hereinafter referred to as an "Acquisition Proposal"), (ii) have any discussion with or provide any information or data to any person relating to an Acquisition Proposal, (ii) furnish or engage in or continue any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, negotiations concerning an Acquisition Proposal, or (iii) participate in facilitate any discussions effort or negotiations with any Third Party that is reasonably expected attempt to make, make or has made, implement an Acquisition Proposal, regarding an (iii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal or (iv) approve or recommend, or propose to approve or recommend, or execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement, confidentiality agreement or other similar agreement or propose publicly or agree to do any of the foregoing related to any Acquisition Proposal; provided that.
(b) The Board of Directors of the Company shall not effect a Change in the Company Recommendation (as defined in Section 6.01(a)) unless:
(1) the Company Stockholders Meeting shall not have occurred and there shall have been no breach of Section 5.04(a), notwithstanding anything and
(2) after consultation with outside counsel, the Board of Directors of the Company determines in good faith that it is required to take such action in order to discharge properly its fiduciary duties under applicable law.
(c) Notwithstanding Section 5.04(a) but subject to Section 5.04(e), the contrary Company may engage in this Agreementany discussions and negotiations with, and provide information and data to, any person and such Person may person's representatives and financing sources in response to an unsolicited bona fide written Acquisition Proposal by any such person, so long as:
(A1) seek the Company Stockholders Meeting shall not have occurred and there shall have been no breach of Section 5.04(a),
(2) the Board of Directors of the Company concludes in good faith that such Acquisition Proposal is reasonably likely (including after further discussions and negotiations) to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to result in a Superior Proposal (as defined below) or, after consultation with outside counsel, the Board of Directors of the Company determines in good faith that it being understood that is required to take such action in order to discharge properly its fiduciary duties under applicable law,
(3) prior to providing any such communications information or data to any person in connection with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal by any such person, the Board of Directors of the restrictions imposed Company receives from such person an executed confidentiality agreement having provisions that are customary in such agreements, as advised by outside counsel, provided that if such confidentiality agreement contains provisions that are less restrictive than the provisions of this Section 3.02. Stockholder shall promptly (but comparable provisions, or omits restrictive provisions, contained in any event within one (1) Business Day) advise the Confidentiality Agreement dated February 9, 2001 between Parent and the Company and Spectrum (the "Confidentiality Agreement"), then the Confidentiality Agreement will be deemed to be amended to contain only such less restrictive provisions or to omit such restrictive provisions, as the case may be, and
(4) prior to providing any such information or data or entering into such discussions or negotiations, the Company notifies Parent promptly of any the name of the person making such Acquisition Proposal received by Stockholder, and the material terms and conditions of any such Acquisition Proposal thereof.
(including any material changes theretod) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach For purposes of this Section 3.02 if it were authorized or permitted by StockholderAgreement, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, "Superior Proposal" means a bona fide written Acquisition Proposal that did either is not result subject to a financing contingency, or if it is subject to a financing contingency, is accompanied by executed financing commitments from any breach of this Section 3.02 bona fide lenders in customary form and in a sufficient amount, and is on terms that the board Board of directors Directors of the Company determines in good faith concludes (after consultation with following receipt of the advice of its financial advisors and outside counsel counsel), taking into account, among other things, all legal, financial, regulatory and other aspects of the proposal and the person making the proposal, (i) will, if consummated, result in a transaction that is more favorable to the Company's stockholders from a financial advisor point of nationally recognized reputationview than the transactions contemplated by this Agreement and (ii) to be, or is likely to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Partycompleted.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 2 contracts
Sources: Merger Agreement (Suiza Foods Corp), Merger Agreement (Dean Foods Co)
Non-Solicitation. (a) Stockholder shall not, shall cause each of its Subsidiaries not to, and shall not authorize Neither Pubco (or permit any of its Representatives toaffiliate thereof) nor Verano (or any affiliate thereof) will, directly or indirectly, (i) solicit, initiate or initiate, knowingly encourage, induce co-operate with or facilitate (including by way of furnishing any Acquisition Proposal non-public information or entering into any inquiryform of agreement, proposal arrangement, letter of intent or offer understanding) the submission, initiation or continuation of any oral or written inquiries, proposals or expressions of interest regarding, constituting or that may reasonably be expected to lead to an Acquisition Proposalany activity, (ii) furnish arrangement or transaction or propose any nonpublic information regarding activities or solicitations in opposition to or in competition with the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third PartyCombination.
(b) Notwithstanding anything herein Without limiting the generality of Section 4.1(a), neither Pubco (nor any affiliate thereof) nor Verano (nor any affiliate thereof) will, directly or indirectly, induce or attempt to induce any other person to initiate, or facilitate the initiation of, any shareholder proposal or “takeover bid”, exempt or otherwise, within the meaning of applicable Securities Laws or other business combination or transaction, for its securities or assets, nor undertake any transaction or negotiate any transaction which would be or potentially could be in opposition to or in conflict with the Business Combination (each, a “Proposal”), including, without limitation, allowing access to any third party (other than representatives of Verano or Pubco, any party to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action AME Agreement and Plan of Merger (or inactionany such party’s representatives), or the agents in relation to the Private Placement or the Pubco Fairness Opinion) that would not constitute a breach by the Companyto conduct due diligence, if taken by the Companyor permitting any of their officers, pursuant directors, managers or shareholders to Section 5.3 of the Merger Agreementauthorize such access.
(c) Nothing set forth In the event that Pubco receives an unsolicited Proposal prior to the Pubco Meeting, the Pubco Board may, prior to the Pubco Meeting, recommend such Proposal or change, modify or withdraw any of its recommendations referred to in this Agreement shall apply to or limit (b)(ii) of Schedule C (in any way such case a change “Change in Recommendation”), provided that all of control the following conditions are satisfied: (i) the Pubco Board has made the Change in Recommendation in good faith, after having received advice from its financial advisor and external legal counsel; (ii) the Pubco Board has received advice from its external legal counsel that its failure to make the Change of Stockholder Recommendation would be a breach of the fiduciary duties of the Pubco Board under applicable Law; and (iii) Pubco is or Stockholder’s ultimate publicly traded parent company, as applicablehas not been in breach of section 4.1(a) (whether by virtue of a merger, acquisition, consolidation or other similar transaction4.1(b).
(d) Stockholder agrees thatThe Pubco Board may not make a Change in Recommendation except in strict accordance with section 4.1(c). If the Pubco Board makes a Change in Recommendation, without Pubco shall forthwith notify Verano. Upon notification, Verano may terminate this Agreement in accordance with Section 5.2(a)(iv)(C). If Verano does not terminate this Agreement, Pubco must continue to perform its covenants hereunder, including but not limited to its covenants in Article 2 (save and except for its covenant in Section 2.4(e)(ii) to recommend to Pubco Shareholders that they vote in favour of each of the prior written consent Pubco Meeting Matters). For certainty, a Change in Recommendation shall not amend or otherwise impact any Pubco Shareholder Voting Agreement or the covenants of Spectrum, neither it nor a Pubco Key Shareholder provided therein.
(e) In the event that Verano or Pubco or any of its Affiliates their respective affiliates or associates, including any of their officers or directors, receives any form of offer or inquiry in respect of the transactions described in this Section 4.1, Verano or Pubco shall purchase, directly forthwith (in any event within one Business Day following receipt) notify the other party of such offer or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stockinquiry and provide the other party with the material details in respect thereof.
Appears in 2 contracts
Sources: Arrangement Agreement (Verano Holdings Corp.), Arrangement Agreement (Verano Holdings Corp.)
Non-Solicitation. (a) Stockholder Neither Pro-Fac, nor the Company nor any of their respective Subsidiaries shall not(whether directly or indirectly through their respective officers, directors, advisors, agents, representatives or other intermediaries), nor shall cause each Pro-Fac, the Company or any of its their respective Subsidiaries not to, and shall not authorize or permit any of its Representatives totheir respective officers, directly directors, advisors, agents, representatives or indirectly, other intermediaries (ithe "Company Representatives") to (a) solicit, initiate initiate, encourage (including by way of furnishing non-public information) or knowingly encouragetake any action to facilitate the submission of any inquiries, induce proposals or facilitate offers (whether or not in writing) from any Acquisition Proposal Person (other than Buyer and its Affiliates), other than the transactions contemplated by this Agreement, that constitute, or any inquiry, proposal or offer that may are reasonably be expected to lead to to, an Acquisition Proposal, (iib) furnish enter into or participate in any nonpublic information discussions or negotiations regarding the Company an Acquisition Proposal or (c) afford access to the Company’s business, properties, assets, books or records toof Pro-Fac, the Company or otherwise knowingly cooperate in any way with, of their respective Subsidiaries to any Third Party Person that is reasonably expected to make, or is otherwise seeking to makemay be considering making, or has made, an Acquisition Proposal.
(b) The Company shall immediately notify Buyer orally and shall promptly (and in no event later than 24 hours) notify Buyer in writing after having received any Acquisition Proposal, or request for nonpublic information relating to Pro-Fac, the Company or any of their respective Subsidiaries or for access to the properties, books or records of Pro-Fac, the Company or any of their respective Subsidiaries regarding an Acquisition Proposal (iiisuch oral and written notices shall identify the Person making such proposal or request and, if a proposal is made, setting forth the material terms thereof). The Company will keep Buyer fully informed, on a current basis, of the status and details of any such Acquisition Proposal or request.
(c) participate Neither Pro-Fac, nor the Company, nor the Pro-Fac Board, nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in any manner adverse to Buyer, the approval or recommendation of this Agreement or the agreements and transactions contemplated hereby, or propose publicly to approve or recommend an Acquisition Proposal, unless (i) the withdrawal or modification of the approval or recommendation of this Agreement and the agreements and transactions contemplated hereby or the approval or recommendation of another proposal is, in the opinion of Pro-Fac's outside counsel, required, in response to an unsolicited bona fide written Superior Proposal, in order for the Pro-Fac Board to comply with its fiduciary duties to its stockholders under applicable law, and (ii) Pro-Fac and the Company have fully and completely complied with this Section 6.9. Nothing in this Section 6.9(c) shall prohibit Pro-Fac, the Company or Pro-Fac's Board from taking and disclosing to Pro-Fac's stockholders a position with respect to an Acquisition Proposal by a third party to the extent required under the Exchange Act or from making such disclosure to Pro-Fac's stockholders which, in the judgment of Pro-Fac's outside counsel, is required under applicable law; provided, that nothing in this sentence shall affect the obligations of Pro-Fac, the Company and Pro-Fac's Board under any other provision of this Agreement.
(d) Pro-Fac and the Company shall immediately cease and cause their respective Subsidiaries, officers, directors, advisors, agents, representatives and other intermediaries to cease immediately and cause to be terminated any and all existing activities, discussions or negotiations with any Third Party that is reasonably expected Person conducted heretofore with respect to make, or has made, an any Acquisition Proposal, regarding an Acquisition Proposal; provided thatand following the Closing, notwithstanding anything each of Pro-Fac and the Company, as applicable, shall use its commercially reasonable efforts to the contrary in this Agreement, cause any such Person may (A) seek to clarify the terms and conditions parties in possession of any inquiry, proposal confidential information about Pro-Fac or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum that was furnished by or on behalf of any Acquisition Proposal received by Stockholder, Pro-Fac or the material terms and conditions Company to return or destroy all such information in the possession of any such Acquisition Proposal (including party or in the possession of any material changes thereto) and the identity agent or advisor of the Person making any such Acquisition Proposalparty. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum Pro-Fac and the Company (agrees not to the extent not previously provided release any third party from or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking waive any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 provisions of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit confidentiality in any way confidentiality agreement to which the Company is a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction)party.
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 2 contracts
Sources: Unit Purchase Agreement (Pro Fac Cooperative Inc), Unit Purchase Agreement (Agrilink Foods Inc)
Non-Solicitation. (a) Stockholder shall notThe Company agrees that, shall cause each except as expressly contemplated hereby, neither it nor any of its Subsidiaries shall, and the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to cause its and their respective Representatives not to, and shall not authorize directly or permit indirectly (i) initiate, seek or solicit, or knowingly encourage or facilitate (including by way of furnishing non-public information) or take any of its Representatives toother action that is reasonably expected to promote, directly or indirectly, (i) solicit, initiate any inquiries or knowingly encourage, induce the making or facilitate submission of any Acquisition Proposal or any inquiry, proposal or offer that may constitutes, or could reasonably be expected to lead to, an Acquisition Proposal with respect to the Company; (ii) participate or engage in discussions (except to notify a Person that makes an inquiry, offer or proposal related to an Acquisition Proposal with respect to the Company of the existence of the provisions of this Section 6.04 or to clarify whether any such inquiry, offer or proposal constitutes an Acquisition Proposal with respect to the Company) or negotiations with, or disclose any non-public information or data relating to the Company or any of its Subsidiaries or afford access to the properties, books or records of the Company or any of its Subsidiaries to, any Person or group of Persons (or any of their Affiliates or Representatives) that is seeking to make, has made or could be reasonably expected to make, or otherwise in connection with, an Acquisition Proposal with respect to the Company, (iii) enter into any Contract (or any letter of intent, memorandum of understanding, agreement in principle or other similar contract or agreement) with respect to an Acquisition Proposal with respect to the Company (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.04), (iv) take any action or exempt any third party from the restrictions on “business combinations” or any similar provision contained in any applicable Takeover Law or the Company’s Organizational Documents or grant a waiver under Section 203 of the DGCL, or (v) resolve, publicly propose or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and instruct its and their respective Representatives to, immediately upon the execution of this Agreement cause to be terminated any solicitation, encouragement, discussion or negotiation with or involving any Person or group of Persons, or any of their Affiliates (other than Parent or its Affiliates), conducted heretofore by the Company or any Subsidiary thereof or any of its or their respective Representatives, with respect to an Acquisition Proposal or which could reasonably be expected to lead to an Acquisition Proposal, and, in connection therewith, the Company shall immediately discontinue access by any Person or group of Persons, and any of their Affiliates (iiother than Parent or its Affiliates), to any data room (virtual or otherwise) furnish any nonpublic information regarding established by the Company or afford access its Representatives for such purpose. Within two (2) Business Days from the Original Execution Date, the Company shall request the return or destruction of all confidential, non-public information provided to third parties that have entered into confidentiality agreements with the Company’s business, properties, assets, books Company or records to, or otherwise knowingly cooperate any Subsidiary thereof in connection with consideration of any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding . Notwithstanding anything to the contrary in this Agreement, prior to obtaining the Company Stockholder Approval, the Company and the Company Board may take any such Person may actions described in clause (ii) of this Section 6.04(a) with respect to a third party if (A) seek the Company receives a bona fide unsolicited written Acquisition Proposal with respect to clarify the Company from such third party after the Original Execution Date (and such Acquisition Proposal did not result from a violation of this Section 6.04) and (B) such proposal constitutes, and the Company Board determines in good faith (after consultation with its financial advisor and outside legal counsel) that such proposal constitutes or could reasonably be expected to lead to, a Superior Proposal with respect to the Company, and, after consultation with outside legal counsel, that failure to take such action would be inconsistent with the fiduciary duties of the Company Board under applicable Law; provided that the Company may deliver non-public information to such third party only pursuant to a confidentiality agreement containing terms no less favorable to the Company with respect to confidentiality than the terms of the Confidentiality Agreement and that does not include any provision calling for any exclusive right to negotiate with any third party or otherwise having the effect of prohibiting the Company from satisfying any of its obligations hereunder (an “Acceptable Confidentiality Agreement”) so long as the Company (I) concurrently provides to Parent any information and data concerning the Company or any Subsidiary or access provided to such third party that was not previously made available to Parent, and (II) sends a copy of such Acceptable Confidentiality Agreement to Parent promptly (and in any event within twenty-four (24) hours) following its execution and delivery (and the Company shall not thereafter terminate, waive, amend, release or modify any material provisions of such Acceptable Confidentiality Agreement). Nothing contained in this Section 6.04 shall prohibit the Company or the Company Board from taking and disclosing to the Company Stockholders a position with respect to an Acquisition Proposal with respect to the Company pursuant to Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any similar disclosure, if the Company Board has reasonably determined in good faith (after consultation with its outside legal counsel), that the failure to do so would be inconsistent with its fiduciary duties to the Company Stockholders under applicable Law, provided that this sentence shall not permit the Company Board to make a Company Adverse Recommendation Change, except to the extent permitted by Section 6.04(b) or Section 6.04(c). Without limiting the foregoing, it is understood that any violation of the restrictions contained in this Section 6.04(a) by any of the Company’s or its Subsidiaries’ respective Representatives shall be deemed to be a breach of this Section 6.04(a) by the Company.
(b) Neither the Company Board nor any committee thereof shall directly or indirectly (i) withhold, withdraw (or amend, qualify or modify in a manner adverse to Parent or Merger Sub), or publicly propose to withhold or withdraw (or amend, qualify or modify in a manner adverse to Parent or Merger Sub) the approval, recommendation or declaration of advisability by the Company Board or any such committee of the transactions contemplated by this Agreement, (ii) fail to include the Company Recommendation in the Proxy Statement, (iii) propose publicly to recommend, adopt or approve any Acquisition Proposal with respect to the Company, (iv) fail to publicly reaffirm or re-publish the Company Recommendation within five (5) Business Days of being requested by Parent to do so (or if earlier, at least two (2) Business Days prior to the Company Stockholders’ Meeting), (v) fail to send to the Company Stockholders, within ten (10) Business Days after the commencement of a tender or exchange offer relating to the Company Shares (or if earlier, at least two (2) Business Days prior to the Company Stockholders’ Meeting), a statement disclosing that the Company recommends rejection of such tender or exchange offer and reaffirming the Company Recommendation (provided that the taking of no position or a neutral position by the Company Board in respect of the acceptance of any such tender offer or exchange offer as of the end of such period shall constitute a failure to recommend against acceptance of such offer), or (vi) approve or recommend, publicly declare advisable or publicly propose to approve or recommend, or publicly propose to enter into any Contract (or any letter of intent, memorandum of understanding, agreement in principle or other similar contract or agreement) with respect to an Acquisition Proposal relating to the Company (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.04) (any action described in this sentence being referred to as a “Company Adverse Recommendation Change”). Notwithstanding the foregoing, at any time prior to obtaining the Company Stockholder Approval (but not after), and subject to the Company’s compliance at all times with the provisions of this Section 6.04 and Section 6.03, the Company Board may make a Company Adverse Recommendation Change or terminate this Agreement in order to enter into a definitive agreement with respect to a Superior Proposal pursuant to Section 6.04(a), in each case, if: (1) the Company receives a bona fide written Acquisition Proposal with respect to the Company after the Original Execution Date, that has not been withdrawn and did not result from a breach of Section 6.04(a), and the Company Board determines in good faith (after consultation with its financial advisor and outside legal counsel) that such Acquisition Proposal constitutes a Superior Proposal; and (2) the Company Board determines in good faith (after consultation with its financial advisor and outside legal counsel) that failure to take such action in response to such Superior Proposal would be inconsistent with the directors’ fiduciary duties under applicable Law; provided, however, that the Company Board shall not be entitled to take any such action in response to a Superior Proposal with respect to the Company unless (x) the Company provides written notice to Parent at least four (4) Business Days in advance of taking any such action, which notice shall advise Parent that the Company Board has received a Superior Proposal, specify the material terms and conditions of such Superior Proposal, identify the Person or group of Persons making such Superior Proposal and include copies of all documents pertaining to such Superior Proposal as specified in Section 6.04(d); (y) the Company negotiates in good faith with Parent (to the extent Parent wishes to negotiate) during such four (4) Business Day period to make such revisions to the terms of this Agreement as would cause such Acquisition Proposal to cease to be a Superior Proposal; and (z) at the end of such four (4) Business Day period the Company Board determines in good faith (after consultation with the Company’s outside legal counsel and financial advisor and taking into account any alternative transaction proposed in writing by Parent, all financial, legal, regulatory and other terms and conditions of any such alternative transaction proposal and expected timing of consummation and the relative risks of non-consummation of the alternative transaction proposal and the Superior Proposal) that such Superior Proposal continues to constitute a Superior Proposal and that the failure to make a Company Adverse Recommendation Change or terminate this Agreement in order to enter into a definitive agreement with respect to a Superior Proposal pursuant to Section 6.04(a), in response to such Superior Proposal would be inconsistent with the directors’ fiduciary duties under applicable Law. Any amendment to the financial terms and any other material amendment to any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of this Section 6.04(b), and will require a new notice pursuant to clause (x) hereof, except that references in this Section 6.04(b) to “four (4) Business Days” shall be deemed to be references to “two (2) Business Days” and such two (2) Business Day period shall expire at 11:59 p.m. (New York City time) on the second Business Day immediately following the day on which such new notice is delivered (it being understood and agreed that in no event shall any such additional two (2) Business Day period be deemed to shorten the initial four (4) Business Day period).
(c) Notwithstanding the first sentence of Section 6.04(b), at any time prior to obtaining the Company Stockholder Approval (but not after), in connection with any Intervening Event with respect to the Company, the Company Board may make a Company Adverse Recommendation Change if, and only if, an Intervening Event has occurred, and prior to taking such action, the Company Board determines in good faith (after consultation with its financial adviser and outside legal counsel), that the failure to make such Company Adverse Recommendation Change would be inconsistent with the directors’ fiduciary duties under applicable Law; provided, however, that, the Company Board shall not be entitled to make any such Company Adverse Recommendation Change in response to an Intervening Event with respect to the Company unless (x) the Company provides written notice to Parent at least four (4) Business Days in advance of taking any such action, which notice shall advise Parent that an Intervening Event has occurred and include a reasonably detailed description of such Intervening Event; (y) the Company negotiates in good faith with Parent (to the extent Parent wishes to negotiate) during such four (4) Business Day period to make such revisions to the terms of this Agreement so that the failure to take such action would no longer be inconsistent with the directors’ fiduciary duties under applicable Law; and (z) at the end of such four (4) Business Day period the Company Board determines in good faith (after consultation with the Company’s outside legal counsel and financial advisor and taking into account any alternative transaction proposed in writing by Parent, all financial, legal, regulatory and other terms and conditions of any such alternative transaction proposal and expected timing of consummation and the relative risks of non-consummation of the alternative transaction proposal) that the failure to make such Company Adverse Recommendation Change in response to such Intervening Event would be inconsistent with the directors’ fiduciary duties under applicable Law.
(d) As promptly as practicable after receipt thereof (and in any event, within one (1) Business Day), the Company shall advise Parent in writing of any Acquisition Proposal with respect to the Company received from any Person or group of Persons, or any request for information, inquiry, discussions or negotiations with respect to any Acquisition Proposal with respect to the Company, and the terms and conditions of any such request, Acquisition Proposal, inquiry, proposal discussions or offer to determine whether such inquirynegotiations, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to and the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder Company shall promptly (but and in any event event, within one (1) Business Day) advise provide to Parent copies of any written materials received by the Company and Spectrum in connection with any of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) foregoing and the identity of the Person or group of Persons making any such request, Acquisition ProposalProposal or inquiry or with whom any discussions or negotiations are taking place. Without limiting The Company shall simultaneously provide to Parent any non-public information concerning the foregoing, it is agreed that, if any Representative of Stockholder Company or any of its Subsidiaries takes provided to any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the other Person or group (and their respective Representatives) making such of Persons in connection with any Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent Proposal which was not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
Parent. The Company shall keep Parent promptly and fully informed of the status of any Acquisition Proposals (b) Notwithstanding anything herein including the identity of the parties and price involved and any changes to the contrary, Section 3.02(a) any material terms and conditions thereof). The Company shall not prohibit release, or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor permit any of its Affiliates shall purchase, directly or indirectlyto release, any shares of Saturn Common Stock Person from, or securities of Spectrum convertible into waive any provisions of, any confidentiality or exchangeable standstill agreement to which it is a party or exercisable for shares of Saturn Common Stockfail to enforce, to the fullest extent permitted under applicable Law, any such standstill or similar agreement to which it is party.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Akoya Biosciences, Inc.), Agreement and Plan of Merger (Quanterix Corp)
Non-Solicitation. (a) Stockholder Except as otherwise expressly provided in this Section 5.4, the Company and its Subsidiaries shall not, shall cause each of its Subsidiaries not to, and shall not authorize or permit any of its Representatives to, directly or indirectly, through any officer, director, employee, representative, (including any financial or other advisor) or agent of the Company or any of its Subsidiaries (collectively, the “Representatives”):
(i) solicit, initiate initiate, encourage or otherwise knowingly encouragefacilitate (including by way of furnishing or providing copies of, induce access to, or facilitate disclosure of, any Acquisition Proposal confidential information, properties, facilities, books or records of the Company or any of its Subsidiaries) any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to an Acquisition Proposal, ;
(ii) furnish any nonpublic information regarding the Company or afford access to the Company’s businessenter into, propertiesengage in, assets, books or records to, continue or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party Person (other than the Purchaser and its Subsidiaries or affiliates) in respect of any inquiry, proposal or offer that is constitutes or may reasonably be expected to makeconstitute or lead to an Acquisition Proposal, provided that the Company may advise any Person of the restrictions applicable to the Company and its Subsidiaries set forth in this Agreement;
(iii) make a Company Change in Recommendation;
(iv) accept, approve, endorse or recommend, or publicly propose to accept, approve, endorse or recommend, or take no position or remain neutral with respect to, any publicly announced Acquisition Proposal (it being understood that publicly taking no position or a neutral position with respect to an Acquisition Proposal for a period of no more than five Business Days following the public announcement of such Acquisition Proposal will not be considered to be in violation of this Section 5.4(a)(iv); provided that the Company Board has maderejected such Acquisition Proposal and affirmed the Company Board Recommendation by press release before the end of such five Business Day period (or in the event that the Company Meeting is scheduled to occur within such five Business Day period, prior to the third Business Day prior to the date of the Company Meeting); provided, further, that the Company shall provide the Purchaser and its outside legal counsel with a reasonable opportunity to review the form and content of any such press release and shall make all reasonable amendments to such press release as requested by the Purchaser and its counsel); or
(v) accept or enter into, or publicly propose to accept or enter into, any letter of intent, agreement in principle, agreement, arrangement or understanding relating to any Acquisition Proposal.
(b) The Company shall, and shall cause its Subsidiaries and Representatives to immediately cease any existing solicitation, encouragement, discussions, negotiations or other activities commenced prior to the date of this Agreement with any Person (other than the Purchaser and its Subsidiaries or affiliates) conducted by the Company or any of its Subsidiaries or Representatives with respect to any inquiry, proposal or offer that constitutes, or may reasonably be expected to constitute or lead to, an Acquisition Proposal, and, in connection therewith, the Company shall:
(i) immediately discontinue access to and disclosure of its and its Subsidiaries’ confidential information (and not allow access to or disclosure of any such confidential information, or any data room, virtual or otherwise); and
(ii) as soon as possible request (and in any case within two Business Days), and exercise all rights it has (or cause its Subsidiaries to exercise any rights that they have) to require the return or destruction of all confidential information (including derivative information) regarding the Company and its Subsidiaries previously provided to any Person (other than the Purchaser) in connection with a possible Acquisition Proposal to the extent such information has not already been returned or destroyed and the Company or its applicable Subsidiary has the right to request such return or destruction pursuant to a confidentiality agreement that is in force and effect, and shall use its reasonable best efforts to ensure that such requests are fully complied with to the extent the Company is entitled.
(c) The Company represents and warrants that neither the Company nor any of its Subsidiaries has waived any standstill, confidentiality, non-disclosure, business purpose, use or similar agreement or restriction to which the Company or any of its Subsidiaries is a Party as of the date hereof. Subject to Section 5.4(d), the Company covenants and agrees that:
(i) the Company shall take all necessary action to enforce each standstill, confidentiality, non-disclosure, business purpose, use or similar agreement or restriction to which the Company or any of its Subsidiaries is a party; and
(ii) neither the Company nor any of its Subsidiaries nor any of their respective Representatives have released or will, without the prior written consent of the Purchaser, release any Person from, or waive, amend, suspend or otherwise modify such Person’s obligations respecting the Company, or any of its Subsidiaries, under any standstill, confidentiality, non-disclosure, business purpose, use or similar agreement or restriction to which the Company or any of its Subsidiary is a party (it being acknowledged by the Purchaser and the Parent that the automatic termination or automatic release, in each case pursuant to the terms thereof, of any standstill restrictions of any such agreements as a result of the entering into and announcement of this Agreement shall not be a violation of this Section 5.4(c)).
(d) If the Company, or any of its Subsidiaries or any of their respective Representatives receives:
(i) any inquiry, proposal or offer made after the date of this Agreement that constitutes or may reasonably be expected to constitute or lead to an Acquisition Proposal; provided thator
(ii) any request for copies of, notwithstanding access to, or disclosure of, confidential information relating to the Company or any Subsidiary in connection with any proposal that constitutes or may reasonably be expected to constitute or lead to an Acquisition Proposal, including information, access or disclosure relating to the properties, facilities, books or records of the Company or any Subsidiary, in each case made after the date of this Agreement; then, the Company shall promptly notify the Purchaser orally, and then in writing within 24 hours, of such Acquisition Proposal, inquiry, proposal, offer or request (irrespective of whether the Acquisition Proposal, inquiry, proposal, offer or request is conditional upon the Company not disclosing the receipt, or contents of the Acquisition Proposal, inquiry, proposal or request to any person), including the identity of the Person making such Acquisition Proposal, inquiry, proposal, offer or request and the material terms and conditions thereof and provide copies of all written documents, correspondence or other material received in respect of, from or on behalf of any such Person. The Company shall keep the Purchaser fully informed on a current basis of the status of material developments with respect to such Acquisition Proposal, inquiry, proposal, offer or request, including any material changes, modifications or other amendments thereto.
(e) Nothing contained in this Section 5.4 shall prohibit the Company Board from making disclosure to Company Shareholders as required by applicable Law, including complying with Section 2.17 of National Instrument 62-104—Takeover Bids and Issuer Bids and similar provisions under Canadian Securities Laws relating to the provision of a directors’ circular in respect of an Acquisition Proposal and Rule 14d 9 under the Exchange Act, provided, however, neither the Company nor the Company Board shall be permitted to recommend that the Company Shareholders tender any securities in connection with any take-over bid that is an Acquisition Proposal.
(f) Notwithstanding anything to the contrary in this Agreement, but subject to Section 5.4(g), the Unconflicted Company Board may, at any time prior to obtaining the Company Shareholder Approval, make a Company Change in Recommendation in response to an Intervening Event if the Unconflicted Company Board (based upon, amongst other things, the recommendation of the Special Committee) has determined in good faith, after consultation with the Company’s external legal and financial advisors, that the failure by the Unconflicted Company Board to make such Person may a Company Change in Recommendation in response to such Intervening Event would be inconsistent with its fiduciary duties.
(Ag) seek to clarify Upon becoming aware of an Intervening Event, the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party Company shall be limited promptly provide written notice to the clarification of Purchaser describing the original inquiry or proposal made by such Third Party Intervening Event in reasonable detail (the “Intervening Event Notice”), and shall not include (x) any negotiations or similar discussions at all times keep the Purchaser reasonably informed of developments with respect to such inquiryIntervening Event (whether or not such Intervening Event results in a Company Change in Recommendation). Prior to the Unconflicted Company Board making a Company Change in Recommendation in response to an Intervening Event, proposal or offer or (yA) such Person’s view or position the Company shall provide written notice to the Purchaser that the Unconflicted Company Board intends to make a Company Change in Recommendation and specifying, in reasonable detail, the underlying facts giving rise to, and the reasons for making, a Company Change in Recommendation, including the reasons for which the Unconflicted Company Board believes that failure to make a Company Change in Recommendation in response to the Intervening Event would be inconsistent with respect thereto) and its fiduciary duties, (B) inform during the period ending on the earlier of five Business Days following receipt by the Purchaser of the Intervening Event Notice and the third Business Day prior to the Company Meeting (the “Intervening Event Period”), the Purchaser shall have the opportunity (but not the obligation) to request such additional information about the Intervening Event as it may reasonably require (which information shall be provided promptly to the Purchaser, to the extent it is available to the Company), and (C) at the end of such Intervening Event Period, the Unconflicted Company Board (based upon, amongst other things, the recommendation of the Special Committee) shall have determined in good faith, after consultation with the Company’s external legal and financial advisors that the failure by the Unconflicted Company Board to make a Company Change in Recommendation in response to such Intervening Event would continue to be inconsistent with its fiduciary duties.
(h) If the Company delivers an Intervening Event Notice to the Purchaser after a date that is less than five Business Days prior to the Company Meeting, the Company shall be entitled to, and the Company shall upon request by the Purchaser, postpone the Company Meeting to a date that is not more than 15 Business Days after the scheduled date of the Company Meeting (and, in any Person that makes an event, prior to the Outside Date).
(i) For greater certainty, notwithstanding any Company Change in Recommendation (but subject to Section 5.4(h)), unless this Agreement has been terminated in accordance with its terms, the Company shall call the Company Meeting to occur and the Arrangement Resolution to be put to the Company Shareholders thereat for consideration in accordance with this Agreement, and the Company shall not, except as required by applicable Law, submit to a vote of the Company Shareholders any Acquisition Proposal other than the Arrangement Resolution prior to the termination of this Agreement.
(j) The Company acknowledges and agrees that any Company Change in Recommendation may only be made pursuant to Section 5.4(f) and no other provisions of this Agreement.
(k) Without limiting the generality of the foregoing, the Company shall advise its Subsidiaries and its Representatives of the prohibitions set out in this Section 5.4 and any violation of the restrictions imposed set forth in this Section 5.4 by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by StockholderCompany, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute or Representatives shall be deemed to be a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach 5.4 by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 1 contract
Non-Solicitation. (a) Stockholder shall notExcept as permitted by this Section 6.3, shall cause each of its Subsidiaries not tothe Company will, and shall not authorize or permit any of its it will cause the No-Shop Representatives to:
(i) (A) immediately cease and cause to be terminated any solicitation, encouragement, activities, discussions or negotiations with any Persons that may be ongoing with respect to any Acquisition Proposal, (B) take the necessary steps to promptly inform such Persons of the obligations set forth in this Section 6.3, (C) immediately instruct each Person that has previously executed a confidentiality agreement in connection with such Person’s consideration of an Acquisition Proposal to return to the Company or destroy any non-public information previously furnished to such Person or to any Person’s Representatives by or on behalf of the Company or any Company Subsidiary, and (D) enforce (and not release, waive, amend or modify the provisions of) any confidentiality, non-solicit, non-use or standstill agreements entered into with any Person; and
(ii) not, directly or indirectly: (A) solicit, (i) initiate, seek or knowingly encourage or facilitate or take any action to solicit, initiate or seek or knowingly encourage, induce encourage or facilitate any Acquisition Proposal or any inquiry, expression of interest, proposal or offer that may constitutes or would reasonably be expected to lead to an Acquisition Proposal, (iiB) furnish any nonpublic information regarding the Company enter into, participate in, maintain or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in continue any discussions or negotiations relating to, any Acquisition Proposal with any Third Party Person other than Parent or Merger Sub, (C) furnish to any Person other than Parent or Merger Sub any information that is the Company believes or should reasonably expected to makeexpect would be used in connection with, or has madefor the purposes of formulating, an any Acquisition Proposal, regarding (D) enter into any agreement, letter of intent, memorandum of understanding, agreement in principle or Contract providing for or otherwise relating to any Acquisition Proposal (each, an “Alternative Acquisition Agreement”) or (E) submit any Acquisition Proposal or any matter related thereto to the vote of the stockholders of the Company. No later than 48 hours after the date hereof, the Company will notify Parent in writing of the identity of any Person that submitted an Acquisition Proposal; provided that, notwithstanding anything Proposal within one year prior to the contrary date hereof. 47 Without limiting the generality of the foregoing, the parties hereto acknowledge and hereby agree that any violation of the restrictions set forth in this Section 6.3 by any No-Shop Representative will be deemed to be a breach of this Section 6.3 by the Company.
(b) From and after the date of this Agreement, the Company will promptly (and in any such Person may event within 24 hours) provide Parent with: (Ai) seek to clarify the terms and conditions a written description of any inquiry, proposal or offer to determine whether such inquiryexpression of interest, proposal or offer may relating to an Acquisition Proposal (including any modification thereto), or any request for information that would reasonably be expected to lead to a Superior Proposal (it being understood an Acquisition Proposal, that is received by the Company or any such communications with Company Subsidiary or any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform No-Shop Representative from any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but other than Parent or Merger Sub) including in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and description the identity of the Person making any from which such Acquisition Proposal. Without limiting inquiry, expression of interest, proposal, offer or request for information was received (the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a“Other Interested Party”), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.and
Appears in 1 contract
Sources: Merger Agreement
Non-Solicitation. (a1) Stockholder Except as provided in this Article 5, the Company shall not, and shall cause each of its Subsidiaries not to, and shall not authorize or permit any of its Representatives to, directly or indirectly, through any of its or their Representatives or otherwise, and shall not permit any such Person to:
(ia) solicit, assist, initiate or knowingly encouragefacilitate or encourage or take any action to solicit or knowingly facilitate, induce initiate or facilitate encourage any Acquisition Proposal Proposal, or engage in any inquiry, communication regarding the making of any proposal or offer that constitutes or may reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic including by way of furnishing information regarding the Company or afford access to the Company’s business, properties, assets, facilities or books or records to, and records;
(b) enter into or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, engage or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with regarding any Third Party inquiry, proposal or offer that is constitutes or may reasonably be expected to make, or has made, lead to an Acquisition Proposal, regarding or furnish or provide access to any information with respect to its businesses, properties, operations, prospects, securities or conditions (financial or otherwise) in connection with or in furtherance of an Acquisition Proposal; provided that, notwithstanding anything to for greater certainty, the contrary in this Agreement, Company shall be permitted to: (i) communicate with any such Person may (A) seek to clarify solely for the purposes of clarifying the terms and conditions of any inquiry, proposal or offer to determine whether made by such Person, provided any such inquiry, proposal or offer may did not result from a breach of this Section 5.1; (ii) advise any Person of the restrictions of this Agreement; and (iii) advise any Person making an Acquisition Proposal that the Board has determined that such Acquisition Proposal does not constitute, or is not reasonably expected to constitute or lead to, a Superior Proposal;
(c) withdraw, amend, modify or qualify, or propose publicly to withdraw, amend, modify or qualify, in any manner adverse to Purchaser and Parent, the Board Recommendation, except in the manner contemplated by Section 7.2(1)(d)(ii);
(d) accept, recommend, approve, agree to, endorse, or propose publicly to accept, recommend, approve, agree to, or endorse, an Acquisition Proposal; or for a period in excess of five Business Days, take no position or a neutral position with respect to, a publicly announced or publicly proposed Acquisition Proposal; or
(e) otherwise take any action that could reasonably be expected to lead to a Superior an Acquisition Proposal (it being understood that other than as permitted in Section 5.3).
(2) The Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, immediately cease and terminate any such communications solicitation, encouragement, discussion or negotiation commenced prior to the date of this Agreement with any such Third Party shall be limited to Person (other than with the clarification of Purchaser and the original inquiry or proposal made by such Third Party Parent and shall not include (xtheir respective Representatives) any negotiations or similar discussions with respect to such any inquiry, proposal or offer that constitutes, or (y) such Person’s view may reasonably be expected to constitute or position with respect thereto) and (B) inform any Person that makes lead to, an Acquisition Proposal Proposal, and in connection therewith, the Company shall:
(a) immediately discontinue access to and disclosure of all confidential information, including the Data Room and any access to the properties, facilities, books and records of the restrictions imposed by the provisions Company or of this Section 3.02. Stockholder shall any of its Subsidiaries; and
(b) promptly (but and in any event within one three Business Days) request (1i) Business Day) advise the return or destruction of all copies of any confidential information regarding the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes provided to any action that would constitute a breach Person other than the Purchaser and its Representatives, and (ii) the destruction of this Section 3.02 if it were authorized all material including or permitted by Stockholder, incorporating or otherwise reflecting such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder confidential information regarding the Company or any of its Subsidiaries, unless to the extent that such Representative information has agreed not previously been returned or destroyed.
(in 3) The Company agrees that it shall: (i) use commercially reasonable efforts to enforce any capacityconfidentiality, standstill or similar agreement or restriction to which the Company or any of its Subsidiaries is a party; and (ii) in not release any Person from, or waive, amend, suspend or otherwise modify any Person’s obligations respecting the Company, or any of its Subsidiaries, under any confidentiality, standstill or similar agreement or restriction to which the Company or any of its Subsidiaries is a writing enforceable party (it being acknowledged by such party not to take the Purchaser and the Parent that the automatic termination or release of any standstill restrictions of any such action. Notwithstanding agreements as a result of the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date entering into and announcement of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, shall not be a bona fide written Acquisition Proposal that did not result from any breach violation of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction5.1(3)).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 1 contract
Sources: Arrangement Agreement (Toro Co)
Non-Solicitation. (a) Stockholder The Corporation shall not, shall cause each of its Subsidiaries not to, and shall not authorize or permit any of its Representatives to, directly or indirectly, through any officer, director, employee, representative or agent of the Corporation, (i) solicit, initiate or knowingly encourageencourage (including by way of furnishing information or entering into any form of agreement, induce arrangement or facilitate understanding) the initiation of any inquiries, discussions, negotiations, proposals or offers from any Person or other entity or group (other than Acquirer) in respect of any matter or thing inconsistent with the successful completion of the Reorganization, including, without limitation, any Acquisition Proposal or (ii) provide any inquirynon-public information to, proposal participate in any discussions or offer negotiations relating to any such matter or thing with, or otherwise cooperate with or assist or participate in any effort to take such action by, any Person or other entity or group; provided nothing contained in this Section 3.2 or otherwise in this Agreement shall prevent the Board of Directors from:
(i) considering, negotiating or providing information in connection with, or otherwise (except as provided for in (iii) below) responding to, an unsolicited bona fide written Acquisition Proposal in respect of which:
(A) the Board of Directors has determined in good faith (after receiving the advice of its financial advisors that is reflected in the minutes of the Board of Directors) to be a commercially feasible transaction that could be carried out within a time frame that is reasonable in the circumstances and would, if consummated in accordance with its terms, result in a transaction demonstrably superior to the Reorganization from a financial point of view to the Shareholders; and
(B) after consultation with its financial advisors, and after receiving advice of counsel that is reflected in the minutes of the Board of Directors, the Board of Directors concludes in good faith such action is necessary for the Board of Directors to discharge properly its fiduciary duties under applicable law; (any such Acquisition Proposal that meets such requirements being referred to herein as a “Superior Proposal”), provided that the Corporation is in compliance with Sections 3.2(c) and (d) in respect of the Acquisition Proposal;
(ii) complying with Securities Laws relating to the provision of directors' circulars and making appropriate disclosure with respect thereto to Shareholders; and
(iii) accepting, recommending, approving or implementing any Superior Proposal if the Corporation has complied with Sections 3.2(c) and (d) in respect of the Superior Proposal and prior to such acceptance, recommendation, approval or implementation:
(A) after consultation with its financial advisors, and after receiving advice of counsel that is reflected in the minutes of the Board of Directors, the Board of Directors concludes in good faith such action is necessary for the Board of Directors to discharge properly its fiduciary duties under applicable law; and
(B) in arriving at such conclusion, the Board of Directors gives consideration to any amendment proposed by Acquirer in writing in the three Business Day period referred to in Section 3.2(d).
(b) The Corporation shall, and shall direct and use reasonable efforts to cause its officers, directors, employees, representatives and agents to, immediately cease and cause to be terminated any existing discussions or negotiations with any parties (other than Acquirer or an affiliate of Acquirer) with respect to any potential Acquisition Proposal. To the extent not already done so, the Corporation shall immediately close any and all data rooms which may reasonably be expected have been opened. The Corporation agrees not to lead waive, in whole or in part, or release, in whole or in part, any third party from, or consent to an any action pursuant to, any confidentiality or standstill obligation to which the Corporation and such third party is a party except in respect of a Superior Proposal in accordance with Section 3.2(d). The Corporation shall immediately request the return or destruction of all confidential non-public information provided to any third parties who have entered into a confidentiality agreement with the Corporation relating to a potential Acquisition Proposal, shall use all reasonable efforts to ensure that such requests are honoured and shall immediately advise Acquirer orally and in writing of any responses or action (iiactual or threatened) furnish by any nonpublic recipient of such request which could hinder, prevent, delay or otherwise adversely affect the completion of the Reorganization.
(c) The Corporation shall immediately notify Acquirer of any Acquisition Proposal (including, without limitation any amended, supplemented, replaced or renewed Acquisition Proposal previously made) or any request for non-public information regarding relating to the Company Corporation or afford for access to the Company’s business, properties, assets, books or records to, of the Corporation by any Person or otherwise knowingly cooperate in any way with, any Third Party other entity or group that informs the Corporation that it is reasonably expected to make, or is otherwise seeking to makeconsidering making, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected . Such notice to make, or has Acquirer shall be made, an Acquisition Proposalfrom time to time, regarding an Acquisition Proposal; provided thatorally and in writing, notwithstanding anything and shall indicate such details of the proposal, inquiry or contact known to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer person as Acquirer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiryrequest including, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholderwithout limitation, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person or other entity or group making such proposal, inquiry or contact and shall include a copy of any written form of Acquisition Proposal.
(d) If the Board of Directors determines that an Acquisition Proposal constitutes a Superior Proposal pursuant to Section 3.2(a), the Corporation shall give immediate notice of such determination to the Acquirer (together with a copy of any written advice of counsel that is reflected in the minutes of the Board of Directors, referred to in Section 3.2(a)) and shall give Acquirer not less than three Business Days advance notice of any action to be taken by the Board of Directors to withdraw, modify or change any recommendation regarding the Reorganization or to enter into any agreement to implement the Superior Proposal, and provide to Acquirer the right, during such three Business Days, to advise the Board of Directors that Acquirer will, within such period, announce its intention to, and, as soon as practicable in the circumstances and, in any event, within three Business Days of such announcement, amend the terms of the Reorganization to provide that the holders of Shares shall, pursuant to the Reorganization as amended, receive a value per Share equal to or greater than the value per Share provided in the Superior Proposal. If Acquirer so advises the Board of Directors and so amends the Reorganization, the Board of Directors shall not withdraw, modify or change any recommendation with respect to the Reorganization, as so amended, and neither the Corporation nor the Board of Directors shall take any action to accept, recommend, approve or implement the Superior Proposal, including, without limitation, any release of the party making the Superior Proposal from any standstill or confidentiality obligation, any further consideration or negotiation of the Superior Proposal or entry into of any agreement regarding the Superior Proposal and the Corporation agrees to amend this Agreement to provide for the Reorganization as so amended.
(e) If the Board of Directors receives a request for non-public information from a party who has made or is considering making an unsolicited bona fide Acquisition Proposal and the Board of Directors determines that such Acquisition Proposal constitutes a Superior Proposal pursuant to Section 3.2(a), then, and only in such case, the Corporation may, subject to the execution of a confidentiality agreement, provide such party with access to information regarding the Corporation provided that the Corporation complies with its obligations pursuant to Section 3.2(c), sends a copy of any such Acquisition Proposal. Without limiting confidentiality agreement to Acquirer immediately upon its execution and provides copies to Acquirer of any information provided to such party (that has not been previously provided to Acquirer) concurrently with its provision to such part.
(f) The Corporation shall ensure that the foregoingofficers, it is agreed that, if directors and employees of the Corporation and any Representative investment bankers or other advisors or representatives retained by the Corporation are aware of Stockholder or any of its Subsidiaries takes any action that would constitute a breach the provisions of this Section 3.02 if it were authorized or permitted by StockholderSection, such action and the Corporation shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from be responsible for any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be3.2 by such investment bankers, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation advisors or other similar transaction)representatives.
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 1 contract
Non-Solicitation. (a1) Stockholder CP Ships shall not, shall cause each of its Subsidiaries not to, and shall not authorize or permit any of its Representatives to, directly or indirectly, through any officer, director, employee, representative or agent of CP Ships or any of its subsidiaries, (i) solicit, initiate initiate, facilitate or knowingly encourageencourage (including by way of furnishing information or entering into any form of agreement, induce arrangement or facilitate understanding) the initiation of any Acquisition Proposal inquiries or any inquiryproposals regarding, proposal constituting or offer that may reasonably be expected to lead to to, an Acquisition Proposal, (ii) furnish participate in any nonpublic information discussions or negotiations regarding an Acquisition Proposal, (iii) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to TUI, the Company approval of the Board of Directors of CP Ships of the Offer, (iv) approve or afford recommend, or propose publicly to approve or recommend, any Acquisition Proposal or (v) accept or enter into, or propose publicly to accept or enter into, any agreement, understanding or arrangement in respect of an Acquisition Proposal; provided that nothing contained in this Agreement shall prevent the Board of Directors of CP Ships from considering, negotiating, accepting, approving, recommending to CP Ships Shareholders or entering into an agreement, understanding or arrangement in respect of a bona fide, written Acquisition Proposal received after the date hereof that:
(a) did not result from a breach of any agreement between the person making such Acquisition Proposal and CP Ships or any of its subsidiaries, or this Section 7.1;
(b) is not subject to a due diligence access condition that requires access to the Company’s businessbooks, records and personnel of CP Ships or any of its subsidiaries or their representatives beyond 5:00 p.m. (Eastern Time) on the tenth business day after which access is afforded to the person making the Acquisition Proposal (provided, however, the foregoing shall not restrict the ability of such person to continue to review information provided);
(c) involves not less than 50.1 percent of the outstanding CP Ships Shares or 50.1 percent of the consolidated assets of CP Ships; and
(d) in respect of which the Board of Directors of CP Ships determines in its good faith judgment, after consultation with its financial advisors and its outside counsel, that there is a substantial likelihood that any required financing will be obtained and that the Acquisition Proposal would, if consummated in accordance with its terms, result in a transaction that: (A) is reasonably capable of completion in accordance with its terms without undue delay, taking into account all legal, financial, regulatory and other aspects of such Acquisition Proposal and the person making such Acquisition Proposal and (B) is more favourable to CP Ships Shareholders than the Offer, (any such Acquisition Proposal being referred to herein as a "Superior Proposal").
(2) CP Ships shall, and shall cause the officers, directors, employees, representatives and agents of CP Ships and its subsidiaries to, immediately terminate any existing discussions or negotiations with any parties (other than TUI) with respect to any proposal that constitutes, or may reasonably be expected to constitute, an Acquisition Proposal. CP Ships agrees not to release any third party from any confidentiality agreement relating to a potential Acquisition Proposal to which such third party is a party. CP Ships further agrees not to release any third party from any standstill agreement or provision to which such third party is a party unless such third party has made a Superior Proposal. CP Ships shall immediately request the return or destruction of all information provided to any third party which, at any time since January 1, 2002, has entered into a confidentiality agreement with CP Ships relating to a potential Acquisition Proposal to the extent that such information has not previously been returned or destroyed, and shall use all commercially reasonable efforts to ensure that such requests are honoured.
(3) CP Ships shall immediately notify TUI of, at first orally and then in writing, and provide to TUI a copy of, any Acquisition Proposal or inquiry that could lead to an Acquisition Proposal, in each case received after the date hereof of which any of its directors or officers become aware, or any amendments to the foregoing, or any request for non-public information relating to CP Ships or any of its subsidiaries in connection with an Acquisition Proposal or for access to the properties, assets, books or records to, of CP Ships or otherwise knowingly cooperate in any way with, of its subsidiaries by any Third Party person that informs CP Ships or such subsidiary that it is reasonably expected to make, or is otherwise seeking to makeconsidering making, or has made, an Acquisition Proposal, or (iii) participate in Proposal and any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms amendment thereto and conditions a description of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) or inquiry, and shall provide the identity of the Person person making any such Acquisition ProposalProposal or inquiry and such other details of the proposal or inquiry as TUI may reasonably request. Without limiting CP Ships shall (i) keep TUI fully informed of the foregoing, it is agreed thatstatus including any change to the material terms of any such Acquisition Proposal or inquiry; and (ii) provide to TUI copies of all correspondence and other written material sent or provided to CP Ships by any person in connection with any Acquisition Proposal or inquiry or sent or provided by CP Ships to any person in connection with any Acquisition Proposal or inquiry immediately after receipt or delivery thereof.
(4) If CP Ships receives a request for material non-public information from a person who proposes an unsolicited bona fide Acquisition Proposal and the Board of Directors of CP Ships determines that such proposal would be, if consummated in accordance with its terms, a Superior Proposal, assuming the satisfactory outcome of a due diligence condition which conforms to subsection (1), then, and only in such case, the Board of Directors of CP Ships may, subject to the execution by such person of a confidentiality agreement having substantially the same terms as the Confidentiality Agreement, provide such person with access in accordance with subsection (1) to information regarding CP Ships, acting reasonably; provided, however that the person making the Acquisition Proposal shall not be precluded thereunder from making the Acquisition Proposal, and provided further that CP Ships sends a copy of any Representative such confidentiality agreement to TUI immediately upon its execution and TUI is immediately provided with a list and copies of Stockholder or any all information provided to such person not previously provided to TUI and is immediately provided with access to information similar to that which was provided to such person.
(5) CP Ships shall ensure that its officers and directors and those of its Subsidiaries takes subsidiaries and any action that would constitute a breach financial or other advisors or representatives retained by it are aware of the provisions of this Section 3.02 if Section, and it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from be responsible for any breach of this Section 3.02 and that by any such person or its advisors or representatives.
(6) Nothing contained in this Section 7.1 shall prohibit the board Board of directors Directors of CP Ships from making any disclosure to CP Ships' shareholders prior to the Expiry Date if, in the good faith judgment of the Company determines in good faith (Board of Directors of CP Ships, after consultation with outside counsel counsel, such disclosure is necessary for the Board of Directors to act in a manner consistent with its fiduciary duties or is otherwise required under applicable Laws provided that (i) any such disclosure that relates to an Acquisition Proposal shall be deemed to constitute a basis for termination of this Agreement by TUI pursuant to Section 8.2(1)(d) unless the Board of Directors of CP Ships reaffirms its recommendation to CP Ships' Shareholders to accept the Offer in such disclosure and (ii) not less than 48 hours before the Board of Directors of CP Ships considers any such disclosure, CP Ships shall give TUI written notice of the proposed consideration of such disclosure, including a financial advisor summary of nationally recognized reputation) to be, or the reasons for the proposed disclosure and copies of all materials to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect presented to the Company and Board of Directors of CP Ships in respect of its Subsidiaries to, and afford access to the business, properties, assets, books or records consideration of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (proposed disclosure to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, TUI pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction7.1(3).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 1 contract
Non-Solicitation. (a) Stockholder shall not, shall cause The Company and each of its Subsidiaries not toand affiliates shall not, and shall not authorize directly or permit indirectly, through any officer, director, employee, representative or agent of the Company or any of its Representatives Subsidiaries (and it shall use reasonable efforts to cause such officers, directors, employees, representatives and agents not to, directly or indirectly), (i) solicit, initiate or knowingly encourageencourage any inquiries or proposals that constitute, induce or facilitate any Acquisition Proposal or any inquiry, proposal or offer that may could reasonably be expected to lead to to, an Acquisition Proposal, Proposal (as defined below) or (ii) furnish engage in negotiations or discussions concerning, or provide any nonpublic non-public information regarding the Company to any person or afford access to the Company’s business, properties, assets, books or records entity relating to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided thatprovided, notwithstanding anything however, that if, at any time prior to the contrary in this Agreement, any such Person may date the Requisite Stockholder Approval is obtained (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a“Applicable Period”), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (faith, after consultation with its outside counsel counsel, that the failure to do so is reasonably likely to result in a breach of fiduciary duties to the Company Stockholders under Applicable Law, the Company may and a financial advisor of nationally recognized reputationmay permit and authorize its Subsidiaries and representatives to, in response to an Acquisition Proposal (as defined below) to be, or to that could reasonably be reasonably expected to lead to, result in a Superior ProposalProposal (as defined in Section 6.9(c)), Stockholder may which was not solicited by it and which did not otherwise result from a breach of this Section 6.9(a), and subject to compliance with Section 6.9(b), (1x) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to any Person making such an Acquisition Proposal pursuant to a confidentiality agreement containing terms substantially similar to the businessterms (including with respect to standstill or other provisions) of the Confidentiality Agreement and permitting the disclosure contemplated by this Section 6.9 and (y) participate in discussions or negotiations with such Person making such Acquisition Proposal. For purposes of this Agreement, properties“Acquisition Proposal” means any inquiry, assetsproposal or offer from any person relating to any direct or indirect acquisition or purchase of a business that constitutes 25% or more of the net revenues, books net income or records the assets of the Company and its Subsidiaries toSubsidiaries, the Person taken as a whole, or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing 25% or more of any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and class of equity securities of the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchaseSubsidiaries, directly or indirectlyany merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company or any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stockits Subsidiaries, other than the transactions contemplated by this Agreement.
Appears in 1 contract
Non-Solicitation. 1. The Company will: (ai) Stockholder shall notimmediately cease and cause to be terminated any activities, shall cause discussions or negotiations that may be ongoing with respect to an Acquisition Proposal, including terminating all access to documents and information regarding the Company and/or its Subsidiaries, including through a data room; (ii) promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of its Subsidiaries not to, and shall not authorize an Acquisition Proposal to return or permit destroy all non-public information heretofore furnished to such Person by or on behalf of the Company or any of its Subsidiaries; and (iii) enforce and not waive (and cause its Subsidiaries to enforce and not waive) the terms of any such confidentiality agreement and any standstill agreement (or similar covenants contained in any other agreement) to which it (or any of its Subsidiaries) is a party relating to an Acquisition Proposal, provided that, for the avoidance of doubt, any automatic termination or release of any such confidentiality agreement or standstill agreement in accordance with its terms as a consequence of the execution and delivery of this Agreement, without further agreement or action by the Company or any of its Subsidiaries, shall not constitute a breach of this Article 5. Except as expressly permitted by this Article 5, until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 7, the Company will not, except as otherwise provided in the Agreement, and the Company will cause its Representatives, its Subsidiaries and its Subsidiaries’ respective Representatives not to, directly or indirectly, (i) :
a. solicit, initiate initiate, knowingly encourage or knowingly encourage, induce or otherwise facilitate (including by way of furnishing any Acquisition Proposal or non-public information) any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal;
b. enter into, engage in, continue or (iii) otherwise participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, Person (other than the Purchaser) regarding an any Acquisition Proposal; provided thathowever, notwithstanding anything to that the contrary in Company may ascertain facts from the Person making such Acquisition Proposal for the sole purpose of the Board informing itself about such Acquisition Proposal and the Person that made it and the Company may, for a period of seven (7) Business Days following the receipt of such Acquisition Proposal, advise any Person of the restrictions of this Agreement, communicate with any such Person may (A) seek to clarify solely for the purpose of clarifying the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party Person and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform advise any Person that makes making an Acquisition Proposal of that the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any Board has determined that such Acquisition Proposal does not constitute a Superior Proposal;
(including any material changes theretoi) and fail to unanimously recommend or withhold, withdraw, modify or qualify, or publicly propose to withhold, withdraw, modify or qualify, the identity of the Person making any such Acquisition Proposal. Without limiting the foregoingBoard Recommendation; (ii) make, it is agreed that, if or permit any Representative of Stockholder the Company or any of its Subsidiaries takes to make, any action public statement in connection with the Meeting by or on behalf of the Board that would constitute reasonably be expected to have the same effect (iii) accept, approve, endorse or recommend, or publicly propose to accept, approve, endorse or recommend an Acquisition Proposal or take no position or remain neutral, in each case, with respect to a breach publicly announced or otherwise publicly disclosed Acquisition Proposal for more than five (5) Business Days; (iv) accept, approve, endorse, recommend or enter into or publicly propose to accept approve, endorse, recommend or enter into, any agreement, any letter of this intent, understanding, agreement or arrangement (other than a confidentiality agreement entered into in compliance with Section 3.02 5.2(1)(c)) relating to an Acquisition Proposal (an “Alternative Transaction Agreement”); (v) fail to affirm publicly and without qualification the Board Recommendation within five (5) Business Days following the public announcement of an Acquisition Proposal or upon the written request by the Purchaser to provide such reaffirmation, provided that if it were authorized such request is made fewer than five (5) Business Days prior to the Meeting, then, notwithstanding the foregoing, the Board in receipt of such request shall have to make such affirmation as soon as practicable prior to the Meeting; or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacityvi) in a writing enforceable by such party not resolve to take any such action. Notwithstanding of the restrictions set forth prohibited actions above (the actions in this Section 3.02(aclause (c), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction“Adverse Recommendation Change”).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 1 contract
Non-Solicitation. (a) Stockholder Prior to the termination of this Agreement, Newtek and the Company shall not, shall cause each of its Subsidiaries not to, and shall not authorize permit their respective Affiliates, directors, officers, employees, investment bankers, financial advisors, representatives or permit any of its Representatives agents (collectively, “Representatives”) to, directly or indirectly, (i) solicitdiscuss, initiate or knowingly encourage, induce negotiate, undertake, initiate, authorize, recommend, propose or facilitate enter into, either as the proposed surviving, merged, acquiring or acquired corporation, any business combination transaction, whether by way of merger, consolidation, business combination, purchase or disposition of the assets or equity interests of the Company (an “Acquisition Proposal Transaction”) other than the Transactions, (ii) facilitate, encourage, solicit or any initiate discussions, negotiations or submissions of written offers, inquiries, proposals or indications of interest (other than an offer, inquiry, proposal or offer indication of interest by the Parent) contemplating or relating to any Acquisition Transaction (each an “Acquisition Proposal”), (iii) furnish or cause to be furnished, to any Person, any information concerning the business, operations, properties or assets of the Company in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that may could reasonably be expected to lead to an Acquisition Proposal, (iiiv) furnish any nonpublic information regarding the Company or afford access to the Company’s businessapprove, properties, assets, books or records toendorse, or recommend any Acquisition Proposal, (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise knowingly relating to any Acquisition Transaction, or (vi) otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any Third Party that is reasonably expected effort or attempt by any other Person to makedo or seek any of the foregoing.
(b) Commencing on the Execution Date, or is otherwise seeking Newtek shall, and shall cause the Company and their Affiliates and Representatives to, (i) immediately cease and cause to make, or has made, an Acquisition Proposal, or (iii) participate in be terminated any existing discussions or negotiations with any Third Party that is reasonably expected Persons (other than the Parent) conducted heretofore with respect to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to (ii) notify the contrary Parent orally and in this Agreement, any such Person may writing promptly (Abut in no event later than two Business Days) seek to clarify the terms and conditions after receipt of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may inquiry that could reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any request for non-public information with respect relating to the Company and its Subsidiaries to, and afford or for access to the business, properties, assets, books or records of the Company and its Subsidiaries toby any Person other than the Parent (such notice shall indicate the identity of the Person making the Acquisition Proposal, or intending to make an Acquisition Proposal or offer or requesting non-public information relating to the Company or access to the properties, books or records of the Company, the Person material terms of any Acquisition Proposal, or group (modification or amendment to such Acquisition Proposal and their respective Representatives) making shall include copies of any written Acquisition Proposal or amendments or supplements thereto, and Newtek shall keep the Parent informed, on a current basis, of any material changes in the status and any material changes or modifications in the material terms of any such Acquisition Proposal; provided), that prior to furnishing any such information, Stockholder (xiii) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously requested, request the return or destruction of any confidential written or electronic materials provided to any Person in connection with a contemplated or made availablepotential Acquisition Proposal, and (iv) substantially concurrently with it being provided and immediately prohibit any access by any Person (other than the Parent and its representatives) to any physical or made available electronic data room relating to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreementpossible Acquisition Proposal.
(c) Nothing set forth in this Agreement shall apply Newtek and the Company agree not to release or limit in permit the release of any way a change Person from, or to waive or permit the waiver of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectlyprovision of, any shares confidentiality, “standstill,” or similar agreement to which Newtek or the Company is a party that is applicable to the Company and will enforce or cause to be enforced each such agreement at the request of Saturn Common Stock the Parent, at the Parent’s cost and expense, with any such cost or securities expense being approved in advance by Parent before Parent is responsible for payment of Spectrum convertible into any such cost or exchangeable or exercisable for shares of Saturn Common Stockexpense.
Appears in 1 contract
Sources: Merger Agreement (Paltalk, Inc.)
Non-Solicitation. (a) Stockholder shall notSeller and Parent agree that it and its Affiliates (i) will not (and will not permit their officers, shall cause each of its Subsidiaries not todirectors, and shall not authorize employees, agents or permit representatives, including any investment banker, attorney or accountant retained by any of its Representatives them to, directly or indirectly, (i) solicit, initiate or knowingly encourage, induce or facilitate any Acquisition Proposal or encourage (including by way of furnishing material non-public information) any inquiry, proposal or offer that may reasonably be expected (including any proposal or offer to lead its stockholders) with respect to a third party tender offer, merger, consolidation, business combination or similar transaction involving Parent, Seller, the Business or the Acquired Assets, or any acquisition of 10% or more of the capital stock of the Parent or Seller, in a single transaction or a series of related transactions, or any combination of the foregoing (any such proposal, offer or transaction being hereinafter referred to as an "Acquisition Proposal, (ii") furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books participate or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate engage in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding concerning an Acquisition Proposal; and (ii) will immediately cease and cause to be terminated any existing negotiations with any third parties conducted heretofore with respect to any of the foregoing; provided that, notwithstanding anything subject to the contrary Section 5.8, nothing contained in this Agreement, any such Person may Agreement shall prevent Parent or its board of directors from (A) seek complying with Rule 14e-2 promulgated under the Securities Exchange Act of 1934, as amended with regard to clarify an Acquisition Proposal or (B) prior to the date approval of the Transactions by Parent's stockholders is obtained, providing information (pursuant to a confidentiality agreement containing terms identical in all material respects to the terms of the confidentiality agreement entered into between Purchaser and conditions of Parent) to or engaging in any inquiry, proposal negotiations or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications discussions with any such Third Party shall be limited to the clarification of the original inquiry or proposal Person who has made by such Third Party and shall not include an unsolicited bona fide Acquisition Proposal if (x) any negotiations or similar discussions in the good faith judgment of Parent's board of directors, taking into account the likelihood of consummation and after consultation with respect its financial advisors, such Acquisition Proposal is reasonably likely to such inquiry, proposal or offer or result in a transaction more favorable to Parent's stockholders from a financial point of view than the Transactions and (y) such Person’s view or position Parent's board of directors, after consultation with respect theretoits outside legal counsel, determines in good faith that the failure to do so would be inconsistent with its fiduciary obligations under applicable Law.
(b) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall Parent will promptly (but in any event within one (124 hours) Business Daynotify Purchaser of any requests referred to in Section 5.12(a) advise for information or the Company and Spectrum receipt of any Acquisition Proposal received by StockholderProposal, including the identity of the Person or group engaging in such discussions or negotiations, requesting such information or making such Acquisition Proposal, and the material terms and conditions of any such Acquisition Proposal Proposal, and shall keep Purchaser informed on a timely basis (including but in any event within 24 hours) of any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect thereto. Prior to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by referred to in the Companyproviso of Section 5.12(a), if taken by the CompanyParent or Seller intends to participate in any such discussions or negotiations or provide any such information to any such third party, pursuant Parent shall give prompt prior notice to Section 5.3 Purchaser of the Merger Agreementeach such action.
(c) Nothing set forth in this Agreement Section 5.12 shall apply permit Parent or Seller to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement, it being agreed that, during the term of this Agreement, neither Parent nor Seller shall enter into any agreement with any Person that provides for, or limit in any way facilitates, an Acquisition Proposal, other than a change confidentiality agreement containing terms identical in all material respects to the terms of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction)the confidentiality agreement with Purchaser.
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 1 contract
Non-Solicitation. (a) Stockholder and its subsidiaries shall not, shall cause each of its Subsidiaries not to, and shall use their best efforts to cause their officers, directors, employees or other agents not authorize or permit any of its Representatives to, directly or indirectly, (i) take any action to solicit, initiate or knowingly encourage, induce or facilitate any Acquisition Proposal or any inquiry, proposal or offer that may reasonably be expected to lead to an Acquisition Proposal, (ii) furnish or disclose any nonpublic information regarding relating to the Company or any of its Subsidiaries or afford access to the Company’s business, properties, assets, books or records of the Company or any of its Subsidiaries to, or otherwise knowingly cooperate in any way with, any Third Party Person that is reasonably expected to makemay be considering making, or is otherwise seeking to make, or has made, an Acquisition Proposal or has agreed to endorse an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party third party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall will promptly (but in any event within one (1) Business Day) advise notify Milan upon receipt of an Acquisition Proposal or any indication that any Person is considering making an Acquisition Proposal or any request for nonpublic information relating to the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford for access to the business, properties, assets, books or records of the Company and or any of its Subsidiaries toby any Person that may be considering making, or has made, an Acquisition Proposal and will keep Milan fully informed of the status and details of any such Acquisition Proposal, indication or request, including the identity of the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person indication or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Partyrequest.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 1 contract
Sources: Stockholder Support Agreement (OncoMed Pharmaceuticals Inc)
Non-Solicitation. (a) Stockholder shall Vaxxinator hereby covenants and agrees that until the earlier of the Closing Date or the termination date of this Agreement, Vaxxinator or any Vaxxinator Subsidiary will not, shall cause each of its Subsidiaries and will not to, and shall not authorize or permit any of its Representatives representatives to, directly or indirectly, (i) solicit, initiate or initiate, knowingly encourage, induce cooperate with or facilitate (including by way of furnishing any Acquisition Proposal non-public information or entering into any inquiryform of agreement, proposal arrangement or offer understanding) the submission, initiation or continuation of any oral or written inquiries or proposals or expressions of interest regarding, constituting or that may reasonably be expected to lead to an Acquisition Proposalany activity, (ii) furnish arrangement or transaction, nor propose any nonpublic information regarding the Company activities or afford access solicitations in opposition to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way competition with, the Business Combination, and without limiting the generality of the foregoing, not to induce or attempt to induce any Third Party that is reasonably expected other Person to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in initiate any discussions or negotiations regarding the possible acquisition of Vaxxinator or an Affiliate (whether by way of merger, purchase of shares, purchase of assets or otherwise) or any material portion of its securities or assets, nor to undertake any transaction or negotiate any transaction which would be or potentially could be in conflict with the Business Combination, including, without limitation, allowing access to any Third Party that is reasonably expected Person (other than CHCI and its representatives) to makeconduct due diligence, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything nor to the contrary in this Agreement, permit any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view officers or position with directors to do so, except as required by statutory obligations or in respect thereto) and (B) inform of which the board of directors of Vaxxinator determines, in its good faith judgment, after receiving advice from its legal advisors, that failure to recommend such alternative transaction to the Vaxxinator Shareholders would be a breach of its fiduciary duties under applicable Laws. In the event Vaxxinator, any Person that makes an Acquisition Proposal Vaxxinator Subsidiary or any of its Affiliates, including any of their officers or directors, receives any form of offer or inquiry in respect of any of the restrictions imposed by the provisions of this Section 3.02. Stockholder foregoing, Vaxxinator shall promptly forthwith (but in any event within one (1Business Day following receipt) Business Day) advise the Company notify CHCI of such offer or inquiry and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any provide CHCI with such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, details as it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be may reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Partyrequest.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 1 contract
Sources: Business Combination Agreement
Non-Solicitation. Without limiting the generality of Section 5.1:
(a) Stockholder the Corporation and its Subsidiaries shall notimmediately cease and cause to be terminated any existing discussions or negotiations (directly or indirectly, shall cause each through any officer, director, Employee, advisor, representative, investment banker, agent or otherwise) with any person (other than Parent and Bidder) with respect to any liquidation, dissolution, merger, amalgamation, reorganization, recapitalization, take-over bid, sale of all or substantial assets, sale of any equity interest (including Common Shares) or similar transactions involving the Corporation or any of its Subsidiaries not to, and (any of the foregoing discussions or negotiations or any inquiries or proposals relating thereto being referred to herein as an “Acquisition Proposal”) or potential Acquisition Proposal;
(b) the Corporation shall not waive or vary any terms or conditions of any confidentiality agreements that it entered into with any persons that were considering Acquisition Proposals (nor, to the extent applicable under such agreements, shall it authorize or permit any person to make an Acquisition Proposal) and shall forthwith request the return (or the deletion from retrieval systems and data bases or the destruction) of all confidential information as contemplated by those confidentiality agreements and shall use all reasonable efforts to ensure that such requests are honoured; and
(c) except as permitted by this Agreement, none of the Corporation or its Representatives to, Subsidiaries shall (directly or indirectly, (ithrough any officer, director, Employee, advisor, representative, investment banker, agent or otherwise) make, solicit, initiate or knowingly encourage, induce encourage inquiries or facilitate any Acquisition Proposal submission of proposals or any inquiry, proposal or offer that may reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records tooffers, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to makeregarding, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything furnish to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish other person any information with respect to the Company and its Subsidiaries to, and afford access to the businessor enter into any agreement or understanding concerning, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit otherwise co-operate in any way a change of control of Stockholder (with, or Stockholder’s ultimate publicly traded parent companyassist or participate in, as applicable) (whether or facilitate or encourage any effort or attempt by virtue of a merger, acquisition, consolidation any other person to do or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor seek to do any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stockthe foregoing.
Appears in 1 contract
Sources: Support Agreement (Tomkins PLC)
Non-Solicitation. (a) Stockholder 7.2.1 Except as otherwise expressly provided in this Section 7.2, Brazauro shall not, shall cause each of its Subsidiaries not to, and shall not authorize or permit any of its Representatives to, directly or indirectly, through any officer, director, employee, representative (iincluding any financial or other advisor) or agent of Brazauro or any of its subsidiaries (collectively, the “Representatives”):
(a) solicit, initiate or initiate, knowingly encourage, induce encourage or facilitate (including by way of furnishing information or entering into any Acquisition Proposal form of agreement, arrangement or understanding) the initiation of any inquiry, proposal inquiries or offer that may reasonably be expected to lead to proposals regarding an Acquisition Proposal, ;
(ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iiib) participate in any substantive discussions or negotiations with any Third Party that is reasonably expected to make, person (other than Eldorado or has made, an Acquisition Proposal, any of its affiliates) regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.;
(c) Nothing set forth in this Agreement shall apply approve, accept, endorse or recommend, or propose publicly to accept, approve, endorse or limit in recommend, any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).Acquisition Proposal;
(d) Stockholder accept or enter into or publicly propose to accept or enter into, any agreement, understanding or arrangement or other contract in respect of an Acquisition Proposal; or
(e) make a Change in Recommendation.
7.2.2 Except as otherwise provided in this Section 7.2, Brazauro shall, and shall cause its subsidiaries and Representatives to immediately cease and cause to be terminated any solicitation, encouragement, discussion or negotiation with any persons conducted heretofore by Brazauro, its subsidiaries or any Representatives with respect to any Acquisition Proposal, and, in connection therewith, Brazauro will discontinue access to any of its confidential information (and not establish or allow access to any of its confidential information, or any data room, virtual or otherwise) and shall as soon as possible request, to the extent that it is entitled to do so (and exercise all rights it has to require) the return or destruction of all confidential information regarding Brazauro and its subsidiaries previously provided to any such person or any other person and will request (and exercise all rights it has to require) the destruction of all material including or incorporating or otherwise reflecting any material confidential information regarding Brazauro and its subsidiaries. Brazauro agrees that, without the prior written consent of Spectrum, that neither it nor any of its Affiliates subsidiaries, shall purchaseterminate, directly waive, amend or indirectlymodify any provision of any existing confidentiality agreement relating to an Acquisition Proposal or any standstill agreement to which it or any of its subsidiaries is a party (it being acknowledged and agreed that the automatic termination of any standstill provisions of any such agreement as the result of the entering into and announcement of this Agreement by Brazauro, pursuant to the express terms of any shares such agreement, shall not be a violation of Saturn Common Stock this Section 7.2.2) and Brazauro undertakes to enforce all standstill, non-disclosure, non-disturbance, non-solicitation and similar covenants that it or securities any of Spectrum convertible its subsidiaries have entered into or exchangeable or exercisable for shares prior to the date hereof, provided that Brazauro shall not be prevented from considering any Superior Proposal if the provisions of Saturn Common Stockthis Section 7.2 are otherwise complied with.
Appears in 1 contract
Non-Solicitation. (a) Stockholder During the Interim Period, the Company shall not, and shall cause each ensure that no member of the Company Group and none of its Subsidiaries not toand their respective directors, officers and shall not authorize advisers acting on its or permit any of its Representatives totheir behalf (together the Relevant Persons) shall, directly or indirectly, either alone or in concert with others:
(i) initiate, solicit, initiate enter into, engage or knowingly encouragehave discussions or negotiations (including continuing any discussion or negotiation that might have existed on or prior to the date of this TFA) with any third party relating to, induce or facilitate any Acquisition Proposal or any inquiry, proposal or offer that may which could reasonably be expected to lead to or result in, an Acquisition Alternative Proposal, ;
(ii) furnish provide any nonpublic non-public or confidential information regarding or data relating to the Company Group or afford its business or assets or grant access to the Company’s businessits books, properties, assets, books records or records to, or otherwise knowingly cooperate personnel to any third party in any way with, any Third Party that is reasonably expected relation to make, or is otherwise seeking to make, or has made, an Acquisition Alternative Proposal, or ; or
(iii) participate approve or recommend, or propose publicly to approve or recommend, or execute or enter into, any letter of intent, agreement in principle, merger agreement, purchase agreement, business combination agreement, transaction framework agreement, joint-venture agreement, option agreement or similar agreement, to the extent providing for an Alternative Proposal.
(b) The Company shall notify the Offeror promptly (and in any discussions event within twenty-four hours) if any approach or negotiations with any Third Party that is reasonably expected to makeenquiry, or has madeany request for information, is received by it or any of its Relevant Persons from any third party in relation to an Acquisition Alternative Proposal, regarding it being understood that in any case the Company shall notify the Offeror of its knowledge of the identity of such third party, the proposed consideration, the conditions to (the making and declaring unconditional of) the Alternative Proposal and other proposed material terms of such Alternative Proposal. Following receipt of an Acquisition Alternative Proposal; provided that, notwithstanding anything the Company shall continue to cooperate with and support the contrary Transaction in this Agreement, any such Person may (A) seek to clarify accordance with the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger AgreementTFA.
(c) Nothing set forth contained in this Agreement TFA shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent companyprohibit the Company from complying with its obligations under applicable Laws regarding disclosing the fact that an Alternative Proposal has been made, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction)information required to be disclosed by applicable Laws regarding such Alternative Proposal.
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 1 contract
Non-Solicitation. (a1) Stockholder Except as provided in this Article 5, the Company shall not, shall cause each and none of its Subsidiaries not to, and shall not authorize or permit nor any of its Representatives or its Subsidiaries’ directors and officers shall, and the Company shall instruct its and its Subsidiaries’ investments bankers, attorneys, accountants and other advisors or representatives (such directors, officers, investments bankers, attorneys, accountants and other advisors or representatives, collectively, “Representatives”) not to, directly or indirectly, :
(ia) solicit, initiate initiate, encourage or knowingly encourageotherwise facilitate (including by way of furnishing or providing copies of, induce access to, or facilitate disclosure of, any Acquisition Proposal confidential information, properties, facilities, books or records of the Company or any Subsidiary) any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, provided that, for greater certainty, the Company may inform persons of the provisions contained in this Article 5 and it may advise any person making an unsolicited Acquisition Proposal that such Acquisition Proposal does not constitute a Superior Proposal when the Board or relevant committee thereof has so determined;
(iiib) enter into or otherwise engage or participate in any discussions or negotiations with any Third Party that is reasonably expected to make, Person (other than with the Parent and the Purchaser or has made, an Acquisition Proposal, any Person acting jointly or in concert with the Purchaser or the Parent) regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal that constitutes or offer may reasonably be expected to constitute or lead to a Superior to, an Acquisition Proposal (it being understood that any such communications with any such Third Party shall be limited the Company may inform persons of the provisions contained in this Section 5.1);
(c) withdraw, amend, modify or qualify, in a manner adverse to the clarification of Parent and the original inquiry Purchaser, the Board Recommendation;
(d) accept, approve, endorse or proposal made by such Third Party and shall not include (x) recommend any negotiations Acquisition Proposal, or similar discussions take no position or remain neutral with respect to any publicly announced Acquisition Proposal (it being understood that publicly taking no position or a neutral position with respect to a publicly announced Acquisition Proposal for a period of no more than ten (10) Business Days following the public announcement of such Acquisition Proposal will not be considered to be in violation of this Section 5.1 provided the Board has rejected such Acquisition Proposal and affirmed the Board Recommendation before the end of such ten (10) Business Day period); or
(e) enter into (other than a confidentiality agreement permitted by and in accordance with Section 5.3) any agreement in respect of an Acquisition Proposal.
(2) The Company shall, and shall cause its Subsidiaries and its Representatives to, immediately cease and terminate, and cause to be terminated, any solicitation, encouragement, discussion, negotiation, or other activities with any Person (other than with the Parent and the Purchaser or any Person acting jointly or in concert with the Purchaser or the Parent) commenced prior to the date of this Agreement with any Person (other than with the Parent and the Purchaser) with respect to any inquiry, proposal or offer that constitutes, or may reasonably be expected to constitute or lead to, an Acquisition Proposal, and in connection therewith, the Company will:
(ya) such Person’s view promptly discontinue access to and disclosure of all confidential information, including any data room and any access to the properties, facilities, books and records of the Company or position with respect theretoof any of its Subsidiaries; and
(b) within two (2) Business Days as of the date hereof, request, and exercise all rights it has to require (i) the return or destruction of all copies of any confidential information regarding the Company or any Subsidiary provided to any Person (other than the Parent and the Purchaser), and (Bii) inform any Person that makes an Acquisition Proposal the destruction of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise all material including or incorporating or otherwise reflecting such confidential information regarding the Company or any Subsidiary, using its reasonable best efforts to ensure that such requests are fully complied with in accordance with the terms of such rights or entitlements.
(3) The Company represents and Spectrum warrants that neither the Company, its Subsidiaries or any of their respective Representatives has waived any Acquisition Proposal received by Stockholderconfidentiality, standstill or similar agreement or restriction to which the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder Company or any of its Subsidiaries takes any is a party, and covenants and agrees that (i) the Company shall take all necessary action that would constitute a breach of this Section 3.02 if it were authorized to enforce each confidentiality, standstill, use, business purpose or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether similar agreement or not such action shall have been authorized or permitted by Stockholder restriction to which the Company or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in Subsidiaries is a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries toparty, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representativesii) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by neither the Company, if taken by the Company, pursuant to Section 5.3 any of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in its Subsidiaries nor any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees thattheir respective Representatives will, without the prior written consent of Spectrumthe Purchaser (which may be withheld or delayed in the Purchaser’s sole and absolute discretion), neither it nor release any Person from, or waive, amend, suspend or otherwise modify such Person’s obligations respecting the Company or any of its Affiliates shall purchaseSubsidiaries, directly under any confidentiality, standstill, use, business purpose or indirectly, similar agreement or restriction to which the Company or any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stockits Subsidiaries is a party.
Appears in 1 contract
Non-Solicitation. (a) Stockholder At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company shall not, shall cause each of its Subsidiaries not to, and shall not authorize or permit any of its Subsidiaries to (and shall not authorize or permit any Representatives of the Company or any of its Subsidiaries to), directly or indirectly, :
(i) solicit, initiate or initiate, knowingly encourage, cooperate with, knowingly facilitate or knowingly induce the making of any submission or facilitate any announcement of an Acquisition Proposal or the making of any inquiry, offer or proposal or offer that may would reasonably be expected to lead to an any Acquisition Proposal, Proposal or Acquisition Transaction; or
(ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything non-public information relating to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and or any of its Subsidiaries toto any Third Party, in each case in connection with an Acquisition Proposal or Acquisition Transaction, or take any other action intended to assist or facilitate the Person making of any Acquisition Proposal or group any inquiry, offer or proposal that would reasonably be expected to lead to an Acquisition Proposal or Acquisition Transaction; or
(and their respective Representativesiii) making such participate or engage in discussions or negotiations with any Third Party regarding an Acquisition ProposalProposal or Acquisition Transaction; providedor
(iv) approve, that prior endorse or recommend an Acquisition Proposal or Acquisition Transaction; or
(v) except for an Acceptable Confidentiality Agreement contemplated by Section 6.2(b), execute or enter into any letter of intent, memorandum of understanding or Contract contemplating or otherwise relating to furnishing an Acquisition Proposal or Acquisition Transaction; or
(vi) terminate, amend, release, modify or fail to enforce any such informationprovision of, Stockholder (x) receives from such Person or group an executed grant any permission, waiver or request under, any confidentiality or other similar agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and entered into by the Company in respect of or in contemplation of an Acquisition Proposal or Acquisition Transaction; or
(vii) take any action to make the extent not previously provided provisions of any takeover laws inapplicable to any Acquisition Proposal or made availableAcquisition Transaction; or
(viii) substantially concurrently with it being provided or made available publicly propose to such Third Partydo any of the foregoing.
(b) Notwithstanding anything herein the foregoing provisions of Section 6.2(a), prior to obtaining the Requisite Stockholder Approval, the Company Board may, directly or indirectly through any Representative, (x) engage or participate in discussions or negotiations with any Third Party (and its Representatives) that has made a written Acquisition Proposal after the date of this Agreement that was not solicited in material violation of Section 6.2(a) and that the Company Board determines in good faith (after consultation with its financial advisor and its outside legal counsel) either constitutes or is reasonably likely to lead to a Superior Proposal, and/or (y) furnish any non-public information relating to the contraryCompany or any of its Subsidiaries to any Third Party (and its Representatives) that has made a written Acquisition Proposal after the date of this Agreement that was not solicited in material violation of Section 6.2(a) and that the Company Board determines in good faith (after consultation with its financial advisor and its outside legal counsel) either constitutes or is reasonably likely to lead to a Superior Proposal, Section 3.02(a) shall not prohibit or limit Stockholder from taking provided that, in the case of any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 the foregoing clauses (x) or (y):
(i) either the Company is already a party to an Acceptable Confidentiality Agreement with such Third Party or the Company enters into an Acceptable Confidentiality Agreement with such Third Party;
(ii) the Company notifies Newco of the Merger Agreementidentity of such Person and provides Newco all of the terms and conditions of such Acquisition Proposal and a copy thereof; and
(iii) contemporaneously with furnishing any non-public information to such Third Party (and/or its Representatives), the Company furnishes or makes available such non-public information to Newco or its Representatives (to the extent such information has not been previously furnished to Newco).
(c) Nothing The Company hereby acknowledges and agrees that any material violation of the restrictions set forth in this Agreement shall apply to Section 6.2 by any Subsidiary of the Company or limit in any way a change Representative of control of Stockholder (the Company or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates Subsidiaries shall purchase, directly or indirectly, any shares be deemed to be a breach of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stockthis Section 6.2 by the Company.
Appears in 1 contract
Sources: Merger Agreement (Informatica Corp)
Non-Solicitation. (a1) Stockholder Except as expressly provided in this Article 5, the Corporation shall not, and shall cause each of its Subsidiaries and its and their respective Representatives not to, and shall not authorize or permit any of its Representatives to, directly or indirectly, :
(ia) solicit, initiate initiate, knowingly facilitate or knowingly encourage (including by furnishing non-public information or providing copies of, access to, or disclosure of, any confidential information of the Corporation or any Subsidiary, or entering into any form of agreement, arrangement or understanding) any inquiries or proposals or offers that constitute, or would reasonably be expected to constitute or lead to, an Acquisition Proposal;
(b) knowingly encourage, induce enter into or facilitate otherwise engage or participate in any Acquisition Proposal discussions or negotiations with (or provide any non-public information or data to) any Person (other than the Purchaser) with respect to, any inquiry, proposal or offer that may constitutes, or would reasonably be expected to constitute or lead to, an Acquisition Proposal;
(c) make a Change in Recommendation;
(d) grant any waiver under any standstill or similar agreement with any Person (other than the Purchaser); or
(e) accept, approve, endorse, enter into or recommend, or propose publicly to accept, approve, endorse or recommend, any Acquisition Proposal.
(2) The Corporation shall, and shall cause its Subsidiaries and their respective Representatives to immediately cease and cause to be terminated any solicitation, knowing encouragement, discussion, negotiation or other activities with any Person (other than the Purchaser and its Representatives) with respect to any inquiry, proposal or offer that constitutes, or would reasonably be expected to constitute or lead to, an Acquisition Proposal and, in connection therewith, the Corporation shall:
(a) discontinue access or disclosure of all information, including any data room (whether physical or virtual) and any confidential information, properties, facilities, books and records of the Corporation or any Subsidiary (except for access granted to the Purchaser and its Representatives); and
(b) as soon as possible (and in any event within two (2) Business Days of the date hereof), request, to the extent that it is entitled to do so pursuant to any confidentiality or similar agreement entered into in connection with an Acquisition Proposal, (iii) furnish the return or destruction of all copies of any nonpublic confidential information regarding the Company Corporation and its Subsidiaries previously provided to any such Person, and (ii) the destruction by such Person and its Representatives of all material including or afford access incorporating or otherwise reflecting such confidential information regarding the Corporation or its Subsidiaries, to the Company’s businessextent that such information has not previously been returned or destroyed, propertiesusing its commercially reasonable efforts to ensure that such requests are fully complied with in accordance with the terms of such rights or entitlements.
(3) The Corporation represents and warrants that, assetsin the twelve (12) months prior to the date of this Agreement, books neither the Corporation nor any of its Subsidiaries has waived any standstill, confidentiality, non-disclosure, business purpose, use or records tosimilar agreement or restriction to which the Corporation or any of its Subsidiaries is a Party in connection with any potential Acquisition Proposal. The Corporation covenants and agrees that neither the Corporation nor any of its Subsidiaries nor any of their respective Representatives will, without the prior written consent of the Purchaser, release any Person from, or waive, amend, suspend or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to makemodify such Person’s obligations respecting the Corporation, or any of its Subsidiaries, under any such standstill, confidentiality, non-disclosure, business purpose, use or similar agreement or restriction to which the Corporation or any of its Subsidiaries is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposala party; provided that, notwithstanding anything to the contrary set forth in this Agreement, the Corporation shall not be required to enforce, and shall be permitted to waive, any provision of any such Person agreement if the Board determines in good faith, after consultation with outside legal counsel, that the failure to do so would be inconsistent with its fiduciary duties, in which event the Corporation may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether take such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited actions solely to the clarification of extent necessary to permit such Person to make a confidential Acquisition Proposal to the original inquiry Board.
(4) Nothing contained in this Article 5 or proposal made by such Third Party and elsewhere in this Agreement shall not include prohibit (xa) any negotiations or similar discussions with respect the Board from responding to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes an Acquisition Proposal under a director’s circular or otherwise as required under Securities Laws, or from issuing a customary “stop, look and listen” statement pending disclosure thereunder (or any substantially similar communication under applicable Securities Laws), or disclosing to the Shareholders any factual information regarding the business, financial condition or results of operations of the restrictions imposed by Corporation or the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any fact that an Acquisition Proposal received by Stockholderhas been made, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person party making any such Acquisition Proposal or the material terms of such Acquisition Proposal. Without limiting , or (b) the foregoingCorporation or its Representatives from communicating with any Person (or the Representatives of such Person) solely for purposes of clarifying the terms of any proposal, it is agreed that, if any Representative advising such Person of Stockholder or any of its Subsidiaries takes any action that would constitute a breach the restrictions of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to beAgreement, or to be reasonably expected to lead to, advising such Person that their proposal does not constitute a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 1 contract
Non-Solicitation. (a) Stockholder Until the earlier of (i) the Closing Date, or (ii) the date of termination of this Agreement pursuant to the provisions of Article IX hereof, Seller, shall not, shall cause each of its Subsidiaries not to, and shall not authorize permit the Acquired Company or any Subsidiary of the Acquired Company (nor shall Seller permit any of its or their Representatives or Affiliates) to, directly or indirectly, take any of the following actions with any party other than Buyer and its designees: (i) solicit, initiate initiate, participate in any negotiations or knowingly encourage, induce discussions with respect to any offer or facilitate any Acquisition Proposal proposal to acquire all or any inquiryportion of the business, proposal properties or offer that may reasonably be expected technologies of the Acquired Company or any Subsidiary of the Acquired Company, or any amount of the Capital Stock of the Acquired Company or any Subsidiary of the Acquired Company (in each case, whether or not outstanding), whether by merger, purchase of assets (other than the sale of assets in the ordinary course of business consistent with past practices), purchase or issuance of shares or rights to lead to an Acquisition Proposalacquire shares, tender offer, or otherwise (a “Competing Transaction”), or effect any such transaction, (ii) furnish disclose any nonpublic material information regarding not customarily disclosed to any Person concerning the business, technologies or properties of the Acquired Company or any Subsidiary of the Acquired Company, or afford to any Person access to the Acquired Company’s business, properties, assetstechnologies, books or records torecords, other than in the ordinary course of business consistent with past practice or otherwise knowingly cooperate required by Law (but not in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposalconnection with a Competing Transaction), or (iii) participate enter into any agreement with any Person providing for a Competing Transaction. In the event that Seller, Acquired Company or any Subsidiary of the Acquired Company, or Seller becomes aware that any of Seller’s Affiliates has received, prior to the earlier of the Closing Date or the termination of this Agreement in accordance with Article IX hereof, any offer, proposal, or request, directly or indirectly, of the type referenced in clause (i), (iii) or (iv) above, or any request for disclosure or access as referenced in clause (ii) above, Seller shall, and shall cause Acquired Company or any Subsidiary of the Acquired Company to, immediately (x) suspend (and shall cause any of its Affiliates to suspend) any discussions with such offeror or negotiations party with any Third Party that is reasonably expected regard to makesuch offers, proposals, or has maderequests and (y) notify Buyer thereof, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything including information as to the contrary in this Agreement, identity of the offeror or the party making any such Person may (A) seek offer or proposal, to clarify the extent Seller is not restricted or prevented from such disclosure by the terms and conditions of any inquirysuch offer, proposal or offer to determine whether such inquiry, proposal request (or offer may reasonably be expected to lead pursuant to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations non-disclosure or similar discussions with respect to such inquiry, proposal or offer or contractual obligation).
(yb) such Person’s view or position with respect thereto) and (B) inform any Person The parties hereto agree that makes an Acquisition Proposal of irreparable harm would occur in the restrictions imposed by event that the provisions of this Section 3.025.8 were not performed in accordance with their specific terms or were otherwise breached. Stockholder It is accordingly agreed by the parties hereto that Buyer shall promptly (but be entitled to seek an immediate injunction or injunctions, without the necessity of proving the inadequacy of money damages as a remedy and without the necessity of posting any bond or other security, to prevent breaches of the provisions of this Section 5.8 and to enforce specifically the terms and provisions hereof in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity court of the Person making United States or any such Acquisition Proposalstate having jurisdiction, this being in addition to any other remedy to which Buyer may be entitled at law or in equity. Without limiting the foregoing, it is agreed that, if understood that any Representative violation of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in by any Representative or Affiliate of Seller or the event that Stockholder receives, after the date Acquired Company or its Subsidiaries shall be deemed to be a breach of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Partyby Seller.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 1 contract
Non-Solicitation. (a) Stockholder shall not, shall cause each of its Subsidiaries not toThe Company shall, and shall not authorize or permit any of direct and cause its Representatives and its subsidiaries and their respective Representatives to, directly immediately cease and cause to be terminated any existing solicitation, encouragement, discussion or indirectlynegotiation with any person (other than the Purchaser, (iits affiliates or their respective Representatives) solicit, initiate or knowingly encourage, induce or facilitate any Acquisition Proposal or with respect to any inquiry, proposal or offer that constitutes, or may reasonably be expected to constitute or lead to to, an Acquisition ProposalProposal and, in connection therewith, the Company shall:
(i) promptly discontinue access to and disclosure of all confidential information, including and data room and any access to the properties, facilities, books and records of the Company or any of its subsidiaries; and
(ii) furnish promptly and in any nonpublic event within two (2) Business Days of the date hereof, request and exercise all rights it has to require (A) the return or destruction of any confidential information regarding the Company or afford any subsidiary provided to any person (other than the Purchaser or its affiliates) since January 1, 2022 in respect of a possible Acquisition Proposal and (B) the destruction of all material including or incorporating or otherwise reflecting such confidential information regarding the Company or any subsidiary, using its commercial reasonable efforts to ensure that such requests are complied with in accordance with the terms of such rights.
(b) Except as expressly provided in this Article 5, the Company shall not, and shall cause its subsidiaries not to, directly or indirectly, including through any of its or their Representatives, and shall not permit any such person to:
(i) solicit, assist, initiate, encourage or otherwise knowingly facilitate (including by way of furnishing information or providing copies of, access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way withdisclosure of, any Third Party that is reasonably expected confidential information, permitting any visit to make, any facilities or is otherwise seeking to make, properties of the Company or has made, an any of its subsidiaries or entering into any Contract) any Acquisition Proposal, ;
(ii) enter into or (iii) otherwise engage or participate in or facilitate any discussions or negotiations with with, or provide any Third Party information to, any person (other than the Purchaser or its affiliates) regarding any inquiry, proposal or offer that is constitutes or may reasonably be expected to make, constitute or has made, an Acquisition Proposal, regarding lead to an Acquisition Proposal; provided that, notwithstanding anything for greater certainty, the Company shall be permitted to (i) communicate with any person for the contrary in this Agreement, any such Person may (A) seek to clarify purposes of clarifying the terms and conditions of any inquiry, proposal or offer made by such person, (ii) advise any person of the restrictions of this Agreement, and (iii) advise any person making an Acquisition Proposal that the Board has determined that such Acquisition Proposal does not constitute or is not reasonably expected to determine whether constitute or lead to a Superior Proposal;
(iii) make a Change in Recommendation; or
(iv) accept or enter into, or publicly propose to accept or enter into, any Contract (including any letter of intent or agreement in principle) in respect of or in any way related to any Acquisition Proposal (other than a confidentiality agreement permitted by Section 5.1(d)).
(c) The Company represents and warrants that since January 1, 2022 the Company, its subsidiaries and its and their respective Representatives have not waived any confidentiality, standstill or similar agreement, restriction or covenant to which the Company or any of its subsidiaries is a Party with any person. The Company agrees that it shall (i) take all necessary action to enforce any confidentiality, standstill or similar agreement or restriction to which the Company or any subsidiary is a party and (ii) not release any person from, or waive, amend, suspend or otherwise modify any person’s obligations respecting the Company, or any of its subsidiaries, under any confidentiality, standstill or similar agreement or restriction to which the Company or any subsidiary is a party that remains in effect as of the date of this Agreement.
(d) Notwithstanding Section 5.1(a) and any other provision of this Agreement, the Board shall, prior to the approval of the Arrangement Resolution by the Company Shareholders, be permitted to participate in discussions or negotiations with, or furnish information to, any person in response to an unsolicited bona fide written Acquisition Proposal delivered by such inquiryperson to the Company after the date hereof if, proposal and only to the extent that:
(i) the Company has been and continues to be in compliance in all material respects with its obligations under Article 5;
(ii) such person was not restricted from making such Acquisition Proposal pursuant to an existing confidentiality, standstill or offer may similar restriction;
(iii) the Board, after receiving the advice of its financial advisors and outside legal counsel, has determined in good faith that the Acquisition Proposal constitutes or would reasonably be expected to lead to constitute a Superior Proposal Proposal;
(it iv) the Board, after receiving the advice of its outside legal counsel, has determined in good faith that failure to take such action would be inconsistent with its fiduciary duties; and
(v) prior to entering into any discussions or negotiations with, or furnishing any information to such person, the Board has received from such person an executed confidentiality agreement having substantially the same terms as the Confidentiality Agreement and, taken as a whole, being understood that any such communications with any such Third Party shall be limited no less favourable to the clarification of Company than the original inquiry or proposal made by Confidentiality Agreement, and which includes a “standstill” provision that restricts such Third Party person and shall not include (x) any negotiations or similar discussions with respect to such inquiry, proposal or offer or (y) such Person’s view or position with respect thereto) and (B) inform any Person that makes its affiliates from announcing an Acquisition Proposal for a period of not less than 12 months from the restrictions imposed by date of such confidentiality agreement, and the provisions Purchaser has been provided with a copy of this Section 3.02. Stockholder such confidentiality agreement and the Purchaser is provided promptly with a list of, or in the case of information that was not previously made available to the Purchaser, copies of, any information provided to such person;
(e) The Company shall promptly (but and in any event within one (124 hours of receipt by the Company) Business Day) advise notify the Purchaser, at first orally and then in writing, of all inquiries proposals, offers relating to or constituting an Acquisition Proposal, all requests for discussions or negotiations relating to an Acquisition Proposal and all requests for non-public information relating to the Company and Spectrum or any of its subsidiaries or for access to the properties, books or records of the Company or any of its subsidiaries, in each case received on or after the date hereof, of which it or any of its subsidiaries, or any of its or their Representatives, is or becomes aware, or any amendments to any of the foregoing. The Company shall keep Purchaser informed on a prompt basis of the status, including any change to the material terms, of any Acquisition Proposal received such inquiry, proposal, offer or request and will respond promptly to all inquiries by Stockholder, the Purchaser with respect thereto. Such notice shall include a description of the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and or such inquiry, proposal, offer or request, the identity of the Person person making any such Acquisition Proposal. Without limiting Proposal or such inquiry, proposal, offer or request, a copy of such inquiry, proposal, offer or request and all written communications related thereto, and the foregoingCompany shall provide such other details of the Acquisition Proposal and inquiry, it is agreed thatproposal, if any Representative offer or request as the Purchaser may reasonably request.
(f) The Company shall at all times ensure that its subsidiaries and its and its subsidiaries Representatives are aware of Stockholder or any of its Subsidiaries takes any action that would constitute a breach the provisions of this Section 3.02 if 5.1 and it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(a), in the event that Stockholder receives, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from will be responsible for any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, 5.1 by such subsidiaries or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c) Nothing set forth in this Agreement shall apply to or limit in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees that, without the prior written consent of Spectrum, neither it nor any of its Affiliates shall purchase, directly or indirectly, any shares of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stock.
Appears in 1 contract
Non-Solicitation. (a1) Stockholder Except as provided in this Article 5, the Company and its Subsidiaries shall not, shall cause each of its Subsidiaries not to, and shall not authorize or permit any of its Representatives to, directly or indirectly, through any officer, director, employee, representative (including any financial or other advisor) or agent of the Company or of any of its Subsidiaries (collectively, “Representatives”):
(i) solicit, assist, initiate or knowingly encourage, induce encourage or facilitate (including by way of furnishing or providing copies of, access to, or disclosure of, any Acquisition Proposal confidential information, properties, facilities, books or records of the Company or any of its Subsidiaries or entering into any form of agreement, arrangement or understanding) any inquiry, proposal or offer that constitutes or may reasonably be expected to constitute or lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records to, or otherwise knowingly cooperate in any way with, any Third Party that is reasonably expected to make, or is otherwise seeking to make, or has made, an Acquisition Proposal, ;
(ii) enter into or (iii) otherwise engage or participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, Person (other than the Purchaser and its affiliates) regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions of any inquiry, proposal or offer to determine whether such inquiry, proposal that constitutes or offer may reasonably be expected to constitute or lead to, an Acquisition Proposal, it being acknowledged and agreed that the Company may (a) communicate with any Person solely for the purposes of clarifying the terms of any proposal made by such Person that constitutes or may reasonably be expected to constitute or lead to, an Acquisition Proposal, (b) advise such Person of the restrictions of this Agreement or (c) advise any Person making an Acquisition Proposal that their Acquisition Proposal does not constitute a Superior Proposal and is not reasonably expected to constitute or lead to a Superior Proposal, in each case, if, in so doing, no other information that is prohibited from being communicated under this Agreement is communicated to such Person;
(iii) withdraw, amend, modify or qualify in a manner adverse to the Purchaser, or the consummation of the Arrangement, or publicly propose or state an intention to withdraw, amend, modify or qualify in a manner adverse to the Purchaser, or the consummation of the Arrangement, the Board Recommendation;
(iv) accept, approve, endorse or recommend, or publicly propose to accept, approve, endorse or recommend any Acquisition Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry publicly taking no position or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions a neutral position with respect to a publicly announced, or otherwise publicly disclosed, Acquisition Proposal for a period of no more than five Business Days following such public announcement or public disclosure will not be considered to be in violation of this Section 5.1, provided the Board has rejected such Acquisition Proposal and publicly affirmed the Board Recommendation before the end of such five Business Day period); or
(v) accept, approve, endorse, recommend or execute or enter into or publicly propose to accept, approve, endorse, recommend or execute or enter into any agreement, letter of intent, understanding or arrangement in respect of an Acquisition Proposal (other than a confidentiality agreement permitted by and in accordance with Section 5.3).
(2) The Company shall, and shall cause its Subsidiaries and their Representatives to, immediately cease and terminate, and cause to be terminated, any solicitation, encouragement, discussion, negotiation or other activities commenced prior to the date of this Agreement with any Person (other than the Purchaser and its affiliates) with respect to any inquiry, proposal or offer that constitutes, or may reasonably be expected to constitute or lead to, an Acquisition Proposal, and in connection therewith, the Company will: (yi) discontinue access to and disclosure of all information to any such Person’s view or position with respect thereto) person, including the Data Room; and (Bii) inform request, and exercise all rights it has to require (a) the return or destruction of all copies of any Person that makes an Acquisition Proposal of the restrictions imposed by the provisions of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise confidential information regarding the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes provided to any action that would constitute a breach such Person, and (b) the destruction of this Section 3.02 if it were authorized all material including or permitted by Stockholder, incorporating or otherwise reflecting such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder confidential information regarding the Company or any of its Subsidiaries, unless such Representative has agreed (in any capacity) in a writing enforceable by such party not Subsidiaries provided to take any such action. Notwithstanding Person, in each case using its commercially reasonable efforts to ensure that such requests are fully complied with in accordance with the restrictions set forth above in terms of such rights or entitlements; provided, however, that this Section 3.02(a)5.1(2)(ii) shall apply only in respect of Persons subject to a confidentiality, standstill or similar agreement entered into with the Company in the event that Stockholder receives, after one year period prior to the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approval, a bona fide written Acquisition Proposal that did not result from any breach of this Section 3.02 and that the board of directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; provided, that prior to furnishing any such information, Stockholder (x) receives from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances and (y) provides prior written notice to Spectrum and the Company; provided, further, that all such information is provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Party.
(b) Notwithstanding anything herein to the contrary, Section 3.02(a) shall not prohibit or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Company, if taken by the Company, pursuant to Section 5.3 of the Merger Agreement.
(c3) Nothing set forth in this Agreement The Company covenants and agrees that (i) it shall apply take all commercially reasonable action necessary to enforce each confidentiality, standstill or limit in similar agreement, restriction or covenant to which it or any way of its Subsidiaries is a change party, and (ii) neither it, nor any of control its Subsidiaries or any of Stockholder (their respective Representatives have or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transaction).
(d) Stockholder agrees thatwill, without the prior written consent of Spectrumthe Purchaser, neither it nor release any Person from, or waive, amend, suspend or otherwise modify such Person’s obligations respecting the Company or any of its Affiliates Subsidiaries under any confidentiality, standstill or similar agreement, restriction or covenant to which the Company or any of its Subsidiaries is a party (it being acknowledged by the Purchaser that the automatic termination or release of any standstill restrictions pursuant to their terms as a result of entering into and announcing this Agreement or otherwise in accordance with such restrictions shall purchase, directly or indirectly, any shares not be a violation of Saturn Common Stock or securities of Spectrum convertible into or exchangeable or exercisable for shares of Saturn Common Stockthis Section 5.1(3)).
Appears in 1 contract
Sources: Arrangement Agreement
Non-Solicitation. (a) Stockholder The Walnut Entities, their Affiliates and their respective officers, directors, employees, representatives and agents shall notimmediately cease any existing discussions or negotiations, shall cause each if any, with any parties conducted heretofore with respect to any acquisition or exchange of all or any material portion of the assets of, or any equity interest in, Walnut or any of its Subsidiaries not toor any business combination with Walnut or any of its Subsidiaries, except that Walnut may continue any existing discussions or negotiations with respect to the acquisition by Walnut of other factoring businesses in exchange for assets of, or an equity interest in, Walnut. Walnut agrees that, prior to the Effective Time of the Mergers, it shall not, and shall not authorize or permit any of its Representatives toSubsidiaries or any of its or its Subsidiaries' directors, officers, employees, agents or representatives, directly or indirectly, (i) to solicit, initiate initiate, encourage or knowingly encourage, induce or facilitate any Acquisition Proposal or any inquiry, proposal or offer that may reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any nonpublic information regarding the Company or afford access to the Company’s business, properties, assets, books or records tofacilitate, or otherwise knowingly cooperate furnish or disclose non-public information in any way withfurtherance of, any Third Party that is reasonably expected to make, inquiries or is otherwise seeking to make, or has made, an Acquisition Proposal, or (iii) participate in any discussions or negotiations with any Third Party that is reasonably expected to make, or has made, an Acquisition Proposal, regarding an Acquisition Proposal; provided that, notwithstanding anything to the contrary in this Agreement, any such Person may (A) seek to clarify the terms and conditions making of any inquiry, proposal or offer to determine whether such inquiry, proposal or offer may reasonably be expected to lead to a Superior Proposal (it being understood that any such communications with any such Third Party shall be limited to the clarification of the original inquiry or proposal made by such Third Party and shall not include (x) any negotiations or similar discussions with respect to such inquiryany merger, proposal liquidation, recapitalization, consolidation or offer other business combination involving Walnut or (y) such Person’s view its Subsidiaries or position with respect thereto) and (B) inform acquisition of any Person that makes an Acquisition Proposal capital stock or any material portion of the restrictions imposed by the provisions assets of this Section 3.02. Stockholder shall promptly (but in any event within one (1) Business Day) advise the Company and Spectrum of any Acquisition Proposal received by Stockholder, the material terms and conditions of any such Acquisition Proposal (including any material changes thereto) and the identity of the Person making any such Acquisition Proposal. Without limiting the foregoing, it is agreed that, if any Representative of Stockholder or any of its Subsidiaries takes any action that would constitute a breach of this Section 3.02 if it were authorized or permitted by Stockholder, such action shall constitute a breach of this Section 3.02 by Stockholder, whether or not such action shall have been authorized or permitted by Stockholder Walnut or any of its Subsidiaries, unless such Representative has agreed or any combination of the foregoing (in any capacity) in a writing enforceable by such party not to take any such action. Notwithstanding the restrictions set forth above in this Section 3.02(aan "ACQUISITION TRANSACTION"), or negotiate, explore or otherwise engage in discussion with any Person (other than the event Company or its directors, officers, employees, agents and representatives) with respect to any Acquisition Transaction, or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Mergers, the Related Transactions or any other transactions contemplated by this Agreement; provided that Stockholder receivesWalnut may furnish information to, after the date of this Agreement and prior to obtaining the ▇▇▇▇▇▇ Stockholder Approvalnegotiate or otherwise engage in discussions with, any party who delivers a bona fide written proposal for an Acquisition Proposal that did not result from any breach of this Section 3.02 and that Transaction if (i) the board of directors of the Company Walnut Board determines in good faith (and on a reasonable basis by a majority vote, after consultation with its outside counsel and a financial advisor of nationally recognized reputation) to be, or to be reasonably expected to lead to, a Superior Proposal, Stockholder may (1) engage in negotiations with, furnish any information with respect to the Company and its Subsidiaries to, and afford access to the business, properties, assets, books or records of the Company and its Subsidiaries to, the Person or group (and their respective Representatives) making such Acquisition Proposal; providedadvisors, that prior to furnishing any such information, Stockholder (x) receives such Acquisition Transaction is reasonably likely to be more favorable to Walnut and its stockholders from such Person or group an executed confidentiality agreement containing terms and restrictions that are customary for confidentiality agreements executed in similar circumstances a financial point of view than the transactions contemplated by this Agreement and (y) provides prior written notice that failure to Spectrum take such action would thus constitute a breach of the fiduciary duties of the Walnut Board, and (ii) Walnut enters into a customary confidentiality agreement with respect thereto, and (iii) Walnut complies with the Company; provided, further, that all such information is provisions of Section 5.14(b). The term "Acquisition Transaction" shall not include any of the Related Transactions provided or made available to Spectrum and the Company (to the extent not previously provided or made available) substantially concurrently with it being provided or made available to such Third Partyfor in Section 5.6.
(b) Notwithstanding anything herein From and after the execution of this Agreement, Walnut shall, as soon as practicable, advise the Company in writing of the receipt, directly or indirectly, or the existence of any discussions, negotiations, proposals or substantive inquiries relating to an Acquisition Transaction, identify the offeror and furnish to the contrary, Section 3.02(a) shall not prohibit Company a copy of such proposal or limit Stockholder from taking any action (or inaction) that would not constitute a breach by the Companysubstantive inquiry, if taken by it is in writing, or a written summary of any oral proposal or substantive inquiry relating to an Acquisition Transaction. Walnut shall as soon as practicable advise the CompanyCompany in writing of any substantive development relating to such proposal, pursuant to Section 5.3 including the results of the Merger Agreementany substantive discussion or negotiations with respect thereto.
(c) Nothing set forth Neither the Walnut Board nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to the Company, the approval or recommendation of the Walnut Board or a committee thereof of this Agreement shall apply or the transactions contemplated hereby or (ii) recommend to the Walnut Stockholders, or limit propose to recommend to the Walnut Stockholders, any Acquisition Transaction except at or after the termination of this Agreement pursuant to and in any way a change of control of Stockholder (or Stockholder’s ultimate publicly traded parent company, as applicable) (whether by virtue of a merger, acquisition, consolidation or other similar transactionaccordance with Section 7.1(g).
(d) Stockholder The Company, its Subsidiary and their Affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease any existing discussions or negotiations, if any, with any parties conducted heretofore with respect to any acquisition or exchange of all or any material portion of the assets of, or any equity interest in, the Company or its Subsidiary or any business combination with the Company or its Subsidiary. The Company agrees that, without prior to the prior written consent Effective Time of Spectrumthe Mergers, neither it nor shall not, and shall not authorize or permit its Subsidiary or any of its Affiliates shall purchaseor its Subsidiary's directors, officers, employees, agents or representatives, directly or indirectly, to solicit, initiate, encourage or facilitate, or furnish or disclose non-public information in furtherance of, any shares inquiries or the making of Saturn Common Stock any proposal with respect to any merger, liquidation, recapitalization, consolidation or securities other business combination involving the Company or its Subsidiary or acquisition of Spectrum convertible any capital stock or any material portion of the assets of the Company or its Subsidiary or any combination of the foregoing (a "COMPANY TRANSACTION"), or negotiate, explore or otherwise engage in discussion with any Person (other than Walnut or its directors, officers, employees, agents and representatives) with respect to any Company Transaction, or enter into any agreement, arrangement or exchangeable understanding requiring it to abandon, terminate or exercisable for shares of Saturn Common Stockfail to consummate the Merger 2, the Related Transactions or any other transactions contemplated by this Agreement.
Appears in 1 contract