Takeover Proposal. The Company shall not, and shall cause its Subsidiaries and its and its Subsidiaries’ directors, officers, employees, investment bankers, attorneys, accountants, consultants, or other agents or advisors (with respect to any Person, the foregoing Persons are referred to herein as such Person’s “Representatives”) not to, directly or indirectly, solicit, initiate, or knowingly take any action to facilitate or encourage the submission of any Takeover Proposal or the making of any inquiry or proposal that could reasonably be expected to lead to any Takeover Proposal, or, subject to Section 6.04(b): (i) conduct or engage in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, books, or records of the Company or any of its Subsidiaries to, or knowingly assist, participate in, facilitate, or encourage any effort by, any third party (or its potential sources of financing) to make any Takeover Proposal; (ii) (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, or (B) approve any transaction under, or any third party becoming an “interested stockholder” under, Section 203 of the DGCL; or (iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, memorandum of understanding, or other Contract relating to any Takeover Proposal (each, a “Company Acquisition Agreement”). Except as expressly permitted by this Section 6.04, the Company Board shall not effect a Company Adverse Recommendation Change. From and after the date hereof, the Company shall, and shall cause its Subsidiaries and their respective Representatives to, (A) immediately cease any and all existing activities, solicitations, discussions or negotiations with any Person (other than 38031572.13 the parties hereto) conducted heretofore with respect to any Takeover Proposal, (B) take such action as is reasonably necessary to enforce any confidentiality provisions or provisions of similar effect to which the Company or any of its Subsidiaries is a party or of which the Company or any of its Subsidiaries is a beneficiary and (C) enforce the provisions of any standstill agreement or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries. The Company shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to any Takeover Proposal with or for the benefit of the Company to promptly return or destroy all confidential information, documents and materials relating to a Takeover Proposal or to the Company, its Subsidiaries or its businesses, operations or affairs heretofore furnished by or on behalf of the Company 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 and terminate any “data room” or similar access of such Persons and their Representatives.
Appears in 2 contracts
Sources: Merger Agreement (Apex Global Brands Inc.), Merger Agreement (Apex Global Brands Inc.)
Takeover Proposal. The Except as permitted by this Section 5.03, during the period from the date of this Agreement until the earlier of the Effective Time or the valid termination of this Agreement in accordance with its terms, the Company shall not, and shall cause direct its Subsidiaries and its the Company’s and its Subsidiaries’ directors, officers, employees, investment bankers, attorneys, accountants, consultants, or other agents or advisors (with respect to any Person, the foregoing Persons are referred to herein as such Person’s “Representatives”) respective Representatives not to, directly or indirectly, : (i) solicit, initiateinitiate or induce the making, submission or announcement of, or knowingly take any action to facilitate encourage or encourage the submission of facilitate, any Takeover Proposal or the making of any inquiry or proposal that could reasonably be expected to lead to any Takeover Proposal; (ii) continue, orconduct, subject to Section 6.04(b): (i) conduct or engage in any discussions or negotiations withwith any third party (other than solely informing a third party of the existence of the provisions contained in this Section 5.03), disclose any non-public information relating to the Company or any of its Subsidiaries toto any third party, afford access to the business, properties, assets, books, or records of the Company or any of its Subsidiaries toto any third party, in any such case where such action is intended to or knowingly could reasonably be expected to induce, assist, participate in, facilitate, or knowingly facilitate or encourage any effort by, any third party (or its potential sources of financing) that is contemplating or seeking to make make, or has made, any Takeover Proposal; (iiiii) (A) except where a 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) approve, endorse or recommend any Takeover Proposal; (Bv) approve any transaction under, or any third party other than Parent and Merger Sub becoming an “interested stockholder” under, Section 203 of the DGCL; or (iiivi) enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, memorandum of understanding, or other Contract (other than an Acceptable Confidentiality Agreement) contemplating or relating to any Takeover Proposal (each, a “Company Acquisition Agreement”); or (vii) approve, authorize, agree, or publicly announce any intention to do any of the foregoing. Except as expressly permitted by this Section 6.04, the Company Board shall not effect a Company Adverse Recommendation Change. From and after the date hereof, the The Company shall, and shall cause direct its Subsidiaries and their respective the Company’s and its Subsidiaries’ Representatives to, (A) to immediately cease and cause to be terminated any and all existing activities, solicitationsdiscussions, discussions or negotiations negotiations, if any, with any Person (other than 38031572.13 third party conducted prior to the parties hereto) conducted heretofore date hereof with respect to any Takeover Proposal, Proposal and shall use its reasonable best efforts to cause any such third party (Bor its agents or advisors) take such action as is reasonably necessary to enforce any confidentiality provisions or provisions in possession of similar effect to which non-public information in respect of the Company or any of its Subsidiaries is a party or of which the Company or any of its Subsidiaries is a beneficiary and (C) enforce the provisions of any standstill agreement or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries. The Company shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to any Takeover Proposal with or for the benefit of the Company to promptly return or destroy all confidential information, documents and materials relating to a Takeover Proposal or to the Company, its Subsidiaries or its businesses, operations or affairs heretofore that was furnished by or on behalf of the Company and its Subsidiaries to return or any of its Representatives to destroy (and confirm destruction of) all such Person or any of its Representatives in accordance with the terms of any confidentiality agreement with such Person and terminate any “data room” or similar access of such Persons and their Representativesinformation.
Appears in 2 contracts
Sources: Merger Agreement (SPAR Group, Inc.), Merger Agreement (SPAR Group, Inc.)
Takeover Proposal. The (a) From the date of this Agreement until the earlier of the First Tranche Closing or the termination of this Agreement pursuant to Section 9.2, the Company shall and its subsidiaries will not, and shall cause its Subsidiaries and its and its Subsidiaries’ directly or indirectly through their officers, directors, officers, employees, investment bankers, attorneys, accountants, consultants, or other agents or advisors otherwise, (with respect to any Person, the foregoing Persons are referred to herein as such Person’s “Representatives”i) not to, directly or indirectly, solicit, initiate, or knowingly take any action to facilitate initiate or encourage the submission of any Takeover Proposal or the making of any inquiry or proposal that could reasonably be expected to lead to any Takeover Proposal, or, subject to Section 6.04(b): (iii) conduct or engage in any discussions or negotiations with, or disclose any non-public nonpublic information relating to the Company or any of its Subsidiaries subsidiaries to, or afford access to the business, properties, assets, books, books or records of the Company or any of its Subsidiaries subsidiaries to, or knowingly assist, participate in, facilitateany person that has indicated to the Company that it may be considering making, or encourage any effort bythat has made, any third party (a Takeover Proposal or its potential sources whose efforts to formulate a Takeover Proposal would knowingly or could reasonably be expected to be assisted thereby; provided, nothing herein -------- shall prohibit the Company's Board of financing) Directors from taking and disclosing to make any the Company's shareholders a position with respect to an unsolicited tender or exchange offer pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act. Notwithstanding the immediately preceding sentence, if an unsolicited Takeover Proposal; , or an unsolicited written expression of interest that the Company reasonably expects to lead to a Takeover Proposal, shall be received by the Board of Directors of the Company, then, to the extent the Board of Directors of the Company believes in good faith (after consultation with its financial advisor) (i) that such Takeover Proposal would, if consummated, result in a transaction more favorable to the Company's shareholders from a financial point of view than the transaction contemplated by this Agreement and (ii) after reasonable inquiry by the Company, that the third party making such Takeover Proposal is financially capable of consummating such Takeover Proposal (any Takeover Proposal meeting such conditions being referred to in this Agreement as a "Superior Proposal") and the Board of Directors of the Company determines ----------------- in good faith after consultation with outside legal counsel that it is necessary for the Board of Directors of the Company to comply with its fiduciary duties to shareholders under applicable law, the Company and its officers, directors, employees, investment bankers, financial advisors, attorneys, accountants and other representatives retained by it may furnish in connection therewith information and take such other actions as are consistent with the fiduciary obligations of the Company's Board of Directors, and such actions shall not be considered a breach of this Section 9.1 or any other provisions of this Agreement, provided that (A) amend -------- upon each such determination the Company notifies the Landmark Parties of such determination by the Company's Board of Directors and provides the Landmark Parties with a true and complete copy of the Superior Proposal received from such third party, if the Superior Proposal is in writing, or grant any waiver a written summary of all material terms and conditions thereof (including the identity of the person initiating the Superior Proposal), if it is not in writing, (B) the Company provides the Landmark Parties (simultaneously with the time that such documents are provided to such third party) with all documents containing or release under any standstill or similar agreement with respect referring to any class of equity securities non-public information of the Company or that are supplied to such third party, to the extent not previously supplied by the Company to the Landmark Parties and (C) the Company provides such non-public information to any such third party pursuant to a non-disclosure agreement at least as restrictive as to confidential information as the Confidentiality Agreement between the Company and Landmark dated as of March 6, 2001.
(b) The Company shall not, and shall not permit any of its Subsidiariesofficers, directors, employees (acting on behalf of the Company) or other representatives to agree to or endorse any Takeover Proposal unless the Company shall have terminated this Agreement pursuant to Section 9.2 and paid the Landmark Parties all amounts payable to the Landmark Parties pursuant to Section 9.4. Notwithstanding anything in this Agreement to the contrary, the Company shall not accept or recommend to its shareholders, or (B) approve any transaction under, or any third party becoming an “interested stockholder” under, Section 203 of the DGCL; or (iii) enter into any agreement concerning, a Superior Proposal for a period of not less than 48 hours after the Landmark Parties' receipt of a true and complete copy of such Superior Proposal, if the Superior Proposal is in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, memorandum of understandingwriting, or other Contract relating to a written summary of all material terms and conditions thereof, if it is not in writing. The Company will immediately notify the Landmark Parties after receipt of any Takeover Proposal (each, a “Company Acquisition Agreement”). Except as expressly permitted by this Section 6.04, the Company Board shall not effect a Company Adverse Recommendation Change. From and after the date hereof, the Company shall, and shall cause its Subsidiaries and their respective Representatives to, (A) immediately cease any and all existing activities, solicitations, discussions or negotiations with any Person (other than 38031572.13 the parties hereto) conducted heretofore with respect to any Takeover Proposal, (B) take such action as is reasonably necessary to enforce any confidentiality provisions or provisions of similar effect to which the Company or any of its Subsidiaries is a party or of which the Company or any of its Subsidiaries is a beneficiary and (C) enforce the provisions of any standstill agreement or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries. The Company shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to any Takeover Proposal with or for the benefit of the Company to promptly return or destroy all confidential information, documents and materials relating to a Takeover Proposal or to the Company, its Subsidiaries or its businesses, operations or affairs heretofore furnished by or on behalf of the Company 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 and terminate any “data room” or similar access of such Persons and their Representatives.notice
Appears in 2 contracts
Sources: Securities Purchase Agreement (Coolsavings Com Inc), Securities Purchase Agreement (Golden Steven M)
Takeover Proposal. The (a) Subject to the terms of this Section 5.2, from and after the date of this Agreement, the Company shall notshall, and shall cause its Subsidiaries and its and its Subsidiaries’ their respective officers, directors, officers, employees, investment bankers, attorneys, accountants, consultants, consultants or other agents or advisors (with respect to any Person, the foregoing Persons are referred to herein as such Person’s “Representatives”) not to, cease any discussions or negotiations with any third party Person or its Representatives that may then be ongoing with respect to a Takeover Proposal and shall (x) use its reasonable best efforts to have returned to the Company or destroyed any confidential information that has been provided in any such discussions or negotiations; (y) cease providing any further information with respect to the Company or any Takeover Proposal to any such Person or its Representatives; and (z) immediately terminate all access granted to any such Person or its Representatives to any physical or electronic data room (or any other due diligence access). From and after the date of this Agreement, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its or their Representatives to, directly or indirectly, (i) solicit, initiateinitiate or knowingly encourage (including by way of furnishing information which has not been previously publicly disseminated), or knowingly take any other action designed to facilitate or encourage the submission of facilitate, any Takeover Proposal inquiries or the making of any inquiry proposal which constitutes, or proposal that could may reasonably be expected to lead to to, any Takeover Proposal, or, subject to Section 6.04(b): Proposal or (iii) conduct or engage participate in any discussions or negotiations withregarding any Takeover Proposal; provided, disclose any non-public however, that if, following the receipt of a Superior Proposal (as hereinafter defined) or a proposal which is reasonably expected to lead to a Superior Proposal that in either case was made (and not withdrawn) after the date of this Agreement and prior to the receipt of the Shareholder Approval, in circumstances not involving a breach of this Agreement, the Company Board determines in good faith, after considering applicable provisions of state Law and after consultation with outside counsel, that a failure to do so would be inconsistent with the fiduciary duties of directors under Pennsylvania Law, the Company may, in response to such Takeover Proposal and subject to compliance with Section 5.2(b) and Section 5.2(c), (A) request information relating from the Person making such Takeover Proposal for the sole purpose of the Company Board informing itself about the Takeover Proposal that has been made and the Person that made it, (B) furnish information with respect to the Company or any of its Subsidiaries to, afford access to the businessPerson making such Takeover Proposal pursuant to an Acceptable Confidentiality Agreement; provided, propertiesthat (1) such Acceptable Confidentiality Agreement may not include any provision calling for an exclusive right to negotiate with the Company and (2) the Company advises Parent of all such nonpublic information delivered to such person concurrently with its delivery to the requesting party (provided, assetsfurther, booksthat substantially concurrently such delivery, the Company delivers or records makes available to Parent such nonpublic information that was not previously made available to Parent), and (C) participate in negotiations with such party regarding such Takeover Proposal. It is agreed that any violation of the restrictions set forth in the preceding sentence by any officer, director, employee, investment banker, attorney or other advisor or Representative 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 shall be deemed to be a breach of financing) to make any Takeover Proposal; (ii) (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, or (B) approve any transaction under, or any third party becoming an “interested stockholder” under, Section 203 of the DGCL; or (iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, memorandum of understanding, or other Contract relating to any Takeover Proposal (each, a “Company Acquisition Agreement”). Except as expressly permitted by this Section 6.04, 5.2(a) by the Company Board shall not effect a Company Adverse Recommendation ChangeCompany. From and after the date hereofof this Agreement, the Company agrees not to waive or fail to enforce any provision of any confidentiality or standstill agreement to which it is a party relating to a potential or actual Takeover Proposal (unless the Company Board determines in good faith, after considering applicable provisions of applicable Law and after consultation with outside counsel, that enforcing or not waiving such provision would otherwise prevent a Takeover Proposal from being made to the Company).
(b) Except as expressly permitted in this Section 5.2(b), neither the Company Board nor any committee thereof shall (i) withdraw, qualify or modify, or propose publicly to withdraw, qualify or modify, in a manner adverse to Parent, the approval, determination of advisability or recommendation by the Company Board or such committee of this Agreement, the Merger or the other Transactions, (ii) approve, determine to be advisable or recommend, or propose publicly to approve, determine to be advisable or recommend, any Takeover Proposal, or (iii) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement (each, an “Acquisition Agreement”) related to any Takeover Proposal (other than an Acceptable Confidentiality Agreement). Notwithstanding the foregoing, in the event that the Company Board determines in good faith, in response to a Superior Proposal that was made after the date hereof and prior to the receipt of the Shareholder Approval in circumstances not involving a breach of this Agreement, after considering applicable provisions of applicable Law and after consultation with outside counsel, that the failure to do so would be inconsistent with the fiduciary duties of directors under Pennsylvania Law, the Company Board may (subject to compliance with this sentence and to compliance with Section 5.2(a) and Section 5.2(c)) (x) withdraw or modify its approval, determination of advisability, or recommendation of this Agreement, the Merger, and the other Transactions or (y) approve, determine to be advisable, or recommend a Superior Proposal, or (z) cause the Company to enter into an Acquisition Agreement; provided, however, that any actions described in clause (x), (y) or (z) may be taken only (1) after the third (3rd) Business Day following Parent’s receipt of written notice from the Company advising Parent that the Company Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal, identifying the person making such Superior Proposal and providing notice of the determination of the Company Board of what actions described in clause (x), (y) or (z) the Company Board has determined to take, (2) if the Company has negotiated in good faith with Parent during such notice period, to the extent Parent requests to negotiate, to enable Parent to propose revisions to the terms of this Agreement, (3) if, following the end of such notice period, the Company Board shall have considered in good faith any written revisions to the terms of this Agreement proposed by Parent, and shall have determined in good faith (after consultation with an independent financial advisor and receiving the advice of outside counsel) that the Superior Proposal would nevertheless continue to constitute a Superior Proposal if the revisions proposed by Parent were to be given effect, and (4) if in the event of any change to any of the financial terms (including the form, amount and timing of payment of consideration) or any other material terms of such Superior Proposal, the Company shall, in each case, have delivered to Parent an additional notice consistent with that described in clause (1) above of this proviso and a new notice period under clause (1) of this proviso shall cause its Subsidiaries and their respective Representatives to, (Acommence during which time the Company shall be required to comply with the requirements of this Section 5.2(b) immediately cease any and all existing activities, solicitations, discussions or negotiations with any Person (other than 38031572.13 the parties hereto) conducted heretofore anew with respect to such additional notice pursuant to clauses (1) through (4) above of this proviso.
(c) In addition to the obligations of the Company set forth in Section 5.2(a) and Section 5.2(b), the Company shall promptly (and in any event within twenty-four hours) advise Parent orally and in writing of any request for confidential information in connection with a Takeover Proposal or of any Takeover Proposal, the material terms and conditions of such request or Takeover Proposal and the identity of the person making such request or Takeover Proposal and shall keep Parent promptly advised of all significant developments which could reasonably be expected to culminate in the Company Board withdrawing, modifying or amending its recommendation of this Agreement, the Merger and the other Transactions, or in exercising any of its other rights under Section 5.2(a) or Section 5.2(b).
(Bd) take such action as is reasonably necessary to enforce any confidentiality provisions Nothing contained in this Section 5.2 or provisions of similar effect to which Section 6.6 shall prohibit the Company or any of its Subsidiaries is a party or of which the Company Board from taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act or from making any of its Subsidiaries is a beneficiary and (C) enforce the provisions of any standstill agreement or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries. The Company shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to any Takeover Proposal with or for the benefit of the Company to promptly return or destroy all confidential information, documents and materials relating to a Takeover Proposal or other disclosure to the Company’s shareholders if, its Subsidiaries or its businesses, operations or affairs heretofore furnished by or on behalf of in the Company or Board’s determination in good faith after consultation with outside counsel, the failure so to disclose would be inconsistent with its obligations under applicable Law; provided, however, that neither the Company nor the Company Board nor any of its Representatives to such Person or any of its Representatives committee thereof shall, except as in accordance with Section 5.2(b), withdraw or modify, or propose publicly to withdraw or modify, its approval, determination of advisability or recommendation of this Agreement, the terms of any confidentiality agreement with such Person Merger and terminate any “data room” the other Transactions or similar access of such Persons and their Representativesapprove, determine to be advisable, or recommend, or propose publicly to approve, determine to be advisable, or recommend, a Takeover Proposal.
Appears in 2 contracts
Sources: Merger Agreement (ICC Holdings, Inc.), Merger Agreement (ICC Holdings, Inc.)
Takeover Proposal. The Except as expressly permitted by this Section 5.04, the Company shall not, and shall cause its Subsidiaries and its the Company’s and its Subsidiaries’ directors, officers, employees, investment bankers, attorneys, accountants, consultants, or other agents or advisors (with respect to any Person, the foregoing Persons are referred to herein as such Person’s “Representatives”) respective Representatives not to, during the Interim Period: (i) directly or indirectly, solicit, initiate, or knowingly take any action to facilitate or encourage the submission of any Takeover Proposal or the making of any inquiry or proposal that could reasonably be expected to lead to any Takeover Proposal, or, subject to Section 6.04(b): ; (iii) conduct or engage in any negotiations or discussions with (it being understood that the Company may inform Persons of the provisions contained in this Section 5.04), or negotiations with, disclose furnish any material non-public information to, any Person relating to the Company a Takeover Proposal or any of its Subsidiaries to, afford access inquiry or proposal that would reasonably be expected to the business, properties, assets, books, or records of the Company or any of its Subsidiaries to, or knowingly assist, participate in, facilitate, or encourage any effort by, any third party (or its potential sources of financing) lead to make any a Takeover Proposal; (ii) (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, or (B) approve any transaction under, or any third party becoming an “interested stockholder” under, Section 203 of the DGCL; or (iii) approve, recommend to enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, memorandum of understandinginto, or other Contract relating publicly propose to approve, recommend or enter into, any Takeover Proposal (each, a “Company Acquisition Agreement”Agreement (except for any Acceptable Confidentiality Agreement permitted under Section 5.04(c)). Except as expressly permitted by Promptly following the execution of this Section 6.04, the Company Board shall not effect a Company Adverse Recommendation Change. From and after the date hereofAgreement, the Company shall, and shall cause its Subsidiaries and shall cause its and their respective Representatives to, (A) immediately cease any and all existing activities, solicitations, discussions or negotiations ongoing at such time with any Person (other than 38031572.13 the parties heretoParent and its Affiliates) conducted heretofore or its Representatives with respect to any Takeover Proposal, (B) take such action as is reasonably necessary to enforce any confidentiality provisions or provisions of similar effect to which the Company or any of its Subsidiaries is a party or of which the Company or any of its Subsidiaries is a beneficiary Proposal and (C) enforce the provisions of any standstill agreement or similar agreement with respect promptly terminate all data room access granted to any class of equity securities of such Person or its Representatives and, to the Company extent not previously requested, promptly request the return or any of its Subsidiaries. The Company shall promptly after the date of this Agreement instruct each destruction by such Person which that has heretofore received information or executed a confidentiality agreement relating to at any time within twelve (12) months immediately preceding the date hereof in connection with any Takeover Proposal with or for the benefit of all non-public information concerning the Company to promptly return or destroy all confidential information, documents and materials relating to a Takeover Proposal or to the Company, its Subsidiaries or its businesses, operations or affairs heretofore furnished by or on behalf of the Company 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 and terminate any “data room” or similar access of such Persons and their RepresentativesSubsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Sotherly Hotels Lp), Merger Agreement (Sotherly Hotels Lp)
Takeover Proposal. The From and after the date of this Agreement, the Company agrees that (i) it and its officers, directors and employees shall, (ii) the Company Subsidiaries and their officers, directors, and employees shall, and (iii) it shall use its best efforts to ensure that its and the Company Subsidiaries' financial advisors, attorneys, accountants and other advisors, investment bankers, representatives and agents (collectively, "Company Representatives"), immediately cease and cause to be terminated immediately all existing activities, discussions and negotiations with any parties conducted heretofore with respect to, or that would reasonably be expected to lead to, any Takeover Proposal. From and after the date of this Agreement, the Company shall not, nor shall it permit any of the Company Subsidiaries to, and it shall use its best efforts to cause its Subsidiaries and its and its Subsidiaries’ directors, officers, employees, investment bankers, attorneys, accountants, consultants, or other agents or advisors (with respect to any Person, each of the foregoing Persons are referred to herein as such Person’s “Representatives”) Company Representatives not to, directly or indirectly, (i) solicit, initiate, encourage or knowingly take facilitate (including by way of furnishing information) any action to facilitate inquiries or encourage the making or submission of any Takeover Proposal or the making of any inquiry or proposal that could constitutes, or would reasonably be expected to lead to any to, a Takeover Proposal, or, subject to Section 6.04(b): (i) conduct or engage in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, books, or records of the Company or any of its Subsidiaries to, or knowingly assist, participate in, facilitate, or encourage any effort by, any third party (or its potential sources of financing) to make any Takeover Proposal; (ii) (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, or (B) approve any transaction under, or any third party becoming an “interested stockholder” under, Section 203 of the DGCL; or (iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, memorandum of understanding, arrangement or other Contract relating to any Takeover Proposal (each, a “Company Acquisition Agreement”). Except as expressly permitted by this Section 6.04, the Company Board shall not effect a Company Adverse Recommendation Change. From and after the date hereof, the Company shall, and shall cause its Subsidiaries and their respective Representatives to, (A) immediately cease any and all existing activities, solicitations, discussions or negotiations with any Person (other than 38031572.13 the parties hereto) conducted heretofore understanding with respect to any Takeover Proposal, (Biii) take such action as is reasonably necessary participate in any discussions or negotiations regarding, or furnish or disclose to enforce any confidentiality provisions or provisions of similar effect to which the Company or any of its Subsidiaries is person (other than a party or of which the Company or to this Agreement) any of its Subsidiaries is a beneficiary and (C) enforce the provisions of any standstill agreement or similar agreement information with respect to any class of equity securities of the Company or any of its Subsidiaries. The Company shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to any Takeover Proposal with or for the benefit of the Company to promptly return or destroy all confidential information, documents and materials relating to a Takeover Proposal or to the Company, its Subsidiaries or its businessesotherwise cooperate in any way, operations in connection with any inquiries or affairs heretofore furnished by the making of any proposal that constitutes, or on behalf would reasonably be expected to lead to, any Takeover Proposal or (iv) grant any approval pursuant to Section 203(a)(1) or 203(a)(3) of the DGCL; provided, however, that, if at any time prior to the Stockholder Approval: (A) the Company receives an unsolicited Takeover Proposal from a third party (under circumstances in which the Company has complied with the foregoing provisions of this Section 5.2(a)); (B) the Board of Directors of the Company determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) that such Takeover Proposal constitutes or any would reasonably be expected to lead to a Superior Proposal; (C) the Board of Directors of the Company determines in good faith (after consultation with outside counsel) that failure to do so would be a breach of its Representatives fiduciary duties under applicable law; and (D) the Company gives Parent and Merger Sub two Business Days prior written notice of the identity of such third party, the terms and conditions of such Takeover Proposal and the Company's intention to furnish information to, or participate in discussions or negotiations with the person making such Takeover Proposal, then the Company may, subject to compliance with Section 5.2(a), (i) furnish information with respect to the Company Entities to the person making such Takeover Proposal (and its representatives) pursuant to a confidentiality agreement which includes "standstill" provisions and which restricts such person no less than Parent is then restricted by the Confidentiality Agreement (except for such changes specifically necessary in order for the Company to be able to comply with its obligations under this Agreement), provided that a copy of all such information that has not previously been delivered to Parent is delivered to Parent simultaneously with delivery to such Person person, and (ii) participate in discussions or any of its Representatives in accordance negotiations with the terms person making such Takeover Proposal (and its representatives) regarding such Takeover Proposal. The Company agrees that it will promptly inform the Company Subsidiaries and the Company Representatives of any confidentiality agreement with such Person and terminate any “data room” or similar access of such Persons and their Representativesthe obligations undertaken in this Section 5.2(a).
Appears in 1 contract
Takeover Proposal. The Company shall not, and shall cause its Subsidiaries and its and its Subsidiaries’ directors, officers, employees, investment bankers, attorneys, accountants, consultants, or other agents or advisors (with respect to any Person, the foregoing Persons are referred to herein as such Person’s “Representatives”) not to, directly or indirectly, solicit, initiate, or knowingly take any action to facilitate or encourage the submission of any Takeover Proposal or the making of any inquiry or proposal that could reasonably be expected to lead to any Takeover Proposal, or, subject to Section 6.04(b): (i) conduct or engage in any discussions or negotiations with, disclose any non-public information relating to the Company or any of its Subsidiaries to, afford access to the business, properties, assets, books, or records of the Company or any of its Subsidiaries to, or knowingly assist, participate in, facilitate, or encourage any effort by, any third party (or its potential sources of financing) to make any Takeover Proposal; (ii) (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, or (B) approve any transaction under, or any third party becoming an “interested stockholder” under, Section 203 of the DGCL; or (iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, memorandum of understanding, or other Contract relating to any Takeover Proposal (each, a “Company Acquisition Agreement”). Except as expressly permitted by this Section 6.04, the Company Board shall not effect a Company Adverse Recommendation Change. From and after the date hereofof this Agreement, the Company agrees that (i) it and its officers, directors and employees shall, (ii) the Company Subsidiaries and their officers, directors, and employees shall, and (iii) it shall cause use its Subsidiaries commercially reasonable efforts to ensure that its and their respective Representatives tothe Company Subsidiaries' financial advisors, attorneys, accountants and other advisors, investment bankers, representatives and agents (A) collectively, "Company Representatives"), immediately cease any and cause to be terminated immediately all existing activities, solicitations, discussions or and negotiations with any Person (other than 38031572.13 the parties hereto) conducted heretofore with respect to any Takeover Proposal, (B) take such action as is reasonably necessary to enforce any confidentiality provisions or provisions of similar effect to which the Company or any of its Subsidiaries is a party or of which the Company or any of its Subsidiaries is a beneficiary . From and (C) enforce the provisions of any standstill agreement or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries. The Company shall promptly after the date of this Agreement instruct Agreement, the Company shall not, nor shall it permit any of the Company Subsidiaries to, and it shall use its commercially reasonable efforts to cause each of the Company Representatives not to (i) directly or indirectly, solicit, initiate or knowingly encourage a Takeover Proposal, (ii) enter into any agreement or agreement in principle with respect to any Takeover Proposal, (iii) participate in any discussions or negotiations regarding, or furnish or disclose to any Person which has heretofore executed (other than a party to this Agreement) any information with respect to, a Takeover Proposal, or (iv) other than as contemplated by this Agreement, grant any approval pursuant to Section ▇▇-▇▇▇-▇▇▇ of the TBCA; provided, however, that, if at any time prior to Shareholder Approval: (A) the Company receives an unsolicited Takeover Proposal from a third party after the date hereof and (B) the Special Committee determines in good faith (after consultation with its financial advisors and legal counsel) that such Takeover Proposal constitutes or could reasonably be expected to lead to a Superior Proposal; then the Company may, subject to compliance with this Section 5.2, (i) furnish information and/or draft agreements with respect to the Company to the Person making such Takeover Proposal (and its representatives) pursuant to a confidentiality agreement relating to any Takeover Proposal with or which restricts such Person no less than Parent is then restricted by the Confidentiality Agreement (except for the benefit of such changes specifically necessary in order for the Company to promptly return be able to comply with its obligations under this Agreement), provided that a copy of all such information that has not previously been delivered to Parent is delivered to Parent prior to or destroy all confidential informationconcurrently with the delivery to such Person, documents and materials relating to a (ii) participate in discussions or negotiations with the Person making such Takeover Proposal or to (and its Representatives) regarding such Takeover Proposal. Notwithstanding the Companyforegoing, its Subsidiaries or its businessesduring the period from the date of this Agreement through the Effective Time, operations or affairs heretofore furnished by or on behalf of (i) neither the Company or nor any of its Representatives to such Person Company Subsidiary shall terminate, amend, modify or waive any of its Representatives in accordance with the terms provision of any confidentiality or standstill agreement with to which it is a party and (ii) the Company shall enforce, to the fullest extent permitted under applicable law, the provisions of any such Person and terminate agreement, including, but not limited to, seeking to obtain injunctions to prevent any “data room” or similar access breaches of such Persons agreements and their Representativesto enforce specifically the terms and provisions thereof in any court having jurisdiction.
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Sources: Merger Agreement (Thomas Nelson Inc)
Takeover Proposal. The Subject to the terms of this Section 5.04, during the period commencing with the execution and delivery of this Agreement and continuing until the earlier of (x) the valid termination of this Agreement or (y) the Effective Time, neither the Company nor any of its Subsidiaries shall, and the Company shall not, and shall cause its Subsidiaries and its and its Subsidiaries’ directors, officersofficers and employees not to, employees, investment bankers, attorneys, accountants, consultants, or other agents or advisors (with respect and shall direct and use reasonable best efforts to any Person, the foregoing Persons are referred to herein as such Person’s “Representatives”) cause its and its Subsidiaries’ Representatives not to, directly or indirectly, : (i) solicit, initiate, propose, knowingly induce, knowingly facilitate, or knowingly take any action to facilitate or encourage the submission of any Takeover Proposal or the making of any inquiry inquiries, proposals or proposal offers that constitute or could reasonably be expected to lead to any a Takeover ProposalProposal (including by way of furnishing non-public information), or, subject to Section 6.04(b): (iii) conduct enter into or engage participate in any discussions or negotiations withor respond to any inquiries with any third party for the purpose of facilitating, disclose inducing or encouraging any inquiry, proposal or offer with respect to, that constitutes or could reasonably be expected to lead to a Takeover Proposal, (iii) furnish to any Person (other than Parent, Merger Sub or their respective designees) any non-public information relating to the Company or any of its Subsidiaries to, or afford to any Person access to the business, properties, assets, books, records or records of the Company or any of its Subsidiaries topersonnel, or knowingly assist, participate in, facilitate, or encourage any effort by, any third party (or its potential sources of financing) to make any Takeover Proposal; (ii) (A) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries, in any such case to induce the making, submission or announcement or to encourage or facilitate any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to a Takeover Proposal, (Biv) approve any transaction underapprove, recommend, enter into or any third party becoming an “interested stockholder” underpropose to approve, Section 203 of the DGCL; recommend or (iii) enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, memorandum of understanding, or other Contract relating to any a Takeover Proposal Proposal, other than an Acceptable Confidentiality Agreement permitted by this Section 5.04 (each, a “Company Acquisition Agreement”). Except as expressly permitted by , or (v) grant any waiver, amendment or release under any “Standstill” or confidentiality agreement or fail to enforce the terms of any such “standstill” or similar provision of any confidentiality (unless with respect to this Section 6.04, clause (v) the Company Board has determined in good faith, after consultation with outside legal counsel, that failure to take such action would be a violation of the directors’ fiduciary duties under applicable Law, and if such action is so taken, shall not effect provide a proportionate release, amendment or waiver under the standstill in the Confidentiality Agreement). The Company Adverse Recommendation Change. From and after the date hereof, the Company its Subsidiaries shall, and the Company shall cause the Company’s and its Subsidiaries Subsidiaries’ Representatives to cease immediately and their respective Representatives to, (A) cause to be immediately cease terminated any and all existing activities, solicitationsdiscussions, discussions or negotiations negotiations, if any, with any Person (other than 38031572.13 third party conducted prior to the parties hereto) conducted heretofore date hereof with respect to any Takeover Proposal or any inquiry, proposal or offer which constitutes or could reasonably be expected to lead to, a Takeover Proposal, and shall promptly request any such third party (Bor its agents, representatives or advisors, including financing sources) take such action as is reasonably necessary to enforce any confidentiality provisions or provisions in possession of similar effect to which non-public information in respect of the Company or any of its Subsidiaries is a party or of which the Company or any of its Subsidiaries is a beneficiary and (C) enforce the provisions of any standstill agreement or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries. The Company shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to any Takeover Proposal with or for the benefit of the Company to promptly return or destroy all confidential information, documents and materials relating to a Takeover Proposal or to the Company, its Subsidiaries or its businesses, operations or affairs heretofore that was furnished by or on behalf of the Company and its Subsidiaries in connection with such third party’s consideration of a Takeover Proposal to return or destroy all such information and shall immediately shut off all access of any such third party (other than Parent, Merger Sub or their respective designees) to any electronic data room maintained by the Company or on its behalf. Notwithstanding the foregoing, at any time prior to obtaining the Requisite Company Vote, if the Company or any of the Representatives of the Company or its Subsidiaries has received a bona fide written Takeover Proposal from any third party that did not result from a breach of this Section 5.04, the Company and its Representatives may contact the third party making such Takeover Proposal to clarify any ambiguous terms and conditions of such Takeover Proposal (but not engage in negotiations or provide non-public information) solely to the extent necessary in order to determine if such Takeover Proposal constitutes or would reasonably be expected to result in a Superior Proposal or inform such Person or any of the existence of the provisions of this Section 5.04; provided, that, the Company otherwise complies with its Representatives obligations set forth in accordance with the terms of any confidentiality agreement with such Person and terminate any “data room” or similar access of such Persons and their RepresentativesSection 5.04(c).
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