Acquisition Proposals. (a) The Company agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and the Company shall, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly initiate, solicit, knowingly encourage or facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate or engage in discussions 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 that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Tipperary Corp), Agreement and Plan of Merger (Tipperary Corp)
Acquisition Proposals. (a) The Company Brushy agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and the Company Brushy shall, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not to to, (i) directly or indirectly initiate, solicit, solicit or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal that constitutes, or could may reasonably be expected to lead to, an Acquisition ProposalProposal with respect to Brushy, (ii) participate or engage in discussions or negotiations with, or disclose any non-public information or data relating to the Company Brushy or any of its Subsidiaries or afford access to the properties, books or records of the Company Brushy or any of its Subsidiaries to to, any Person that has made an Acquisition Proposal with respect to Brushy or to any person in contemplation Person that Brushy, its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition Proposal, Proposal with respect to Brushy or (iii) accept an Acquisition Proposal with respect to Brushy or enter into any agreement, including any letter of intent, memorandum of understanding, intent or 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 Acquisition Proposal principle (other than an Acceptable Confidentiality Agreement permitted pursuant to in circumstances contemplated in the final sentence of this Section 6.25.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to Brushy or (By) requiring, intended to causethat would require, or which could reasonably be expected to cause would have the Company effect of causing, Brushy to abandon, terminate or fail to consummate the merger Merger or any the other transaction transactions contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the CompanyBrushy’s Subsidiaries or by any representatives Representative of the Company Brushy or any of its Subsidiaries, whether or not such representative Representative is so authorized and whether or not such representative Representative is purporting to act on behalf of the Company Brushy or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the CompanyBrushy. Notwithstanding anything to the contrary in this Agreement, Brushy and the Company and its board of directors Brushy Board may take any actions described in clause (ii) of this Section 6.2(a5.3(a) with respect to a third party if at any time prior to obtaining the Effective Time Brushy Required Vote if, prior to such vote, (x) the Company Brushy receives a bona fide written Acquisition Proposal with respect to Brushy from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company Brushy or any of its Subsidiaries or any of their respective officersRepresentatives after the date and in violation of this Agreement), directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal could constitutes or is reasonably be expected likely to lead to, result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to Brushy and (z) the Brushy Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that the Company Brushy shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company ; and no actions taken in accordance with this sentence shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach violation of clause (i) of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Law5.3(a).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Lilis Energy, Inc.), Agreement and Plan of Merger (Brushy Resources, Inc.)
Acquisition Proposals. (a) The Company agrees that, except as expressly contemplated by this Agreement, that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and the Company shall, that it shall not permit its and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisorsSubsidiaries’ employees, agents and other representatives not to (iincluding any investment banker, attorney, consultant or accountant (“Representatives”) directly retained by it or indirectly any of its Subsidiaries) on its behalf to, initiate, solicit, solicit or knowingly encourage or facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutesor offer from any Person or group of Persons other than Parent or its affiliates, with respect to: (i) a merger, reorganization, share exchange, consolidation, business combination, plan of liquidation or could reasonably be expected to lead to, an Acquisition Proposal, similar transaction involving the Company; (ii) participate any purchase of 15% or more of any class of voting securities of the Company or its Subsidiaries; or (iii) any purchase or sale of 15% or more of the equity interest in the Company or the consolidated assets (on a book value basis) of the Company and its Subsidiaries, taken as a whole (any such proposal or offer being hereinafter referred to as an “Acquisition Proposal”). The Company further agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall not permit its and its Subsidiaries’ Representatives to, (i) engage in any discussions or negotiations with, or disclose provide any confidential or non-public information or data to, any Person 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 that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, ; (ii) knowingly encourage any effort or attempt to make or implement an Acquisition Proposal; (iii) approve, recommend, agree to or accept, or propose to approve, recommend, agree to or accept an any Acquisition Proposal Proposal; (iv) approve, recommend, agree to or accept, or execute or enter into any agreementinto, 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 agreementagreement related to any Acquisition Proposal; (v) withdraw, arrangement modify, qualify or understandingchange the Recommendation or (vi) resolve, (A) constituting propose or related toagree to do any of the foregoing. The Company agrees that it, and its Subsidiaries will immediately cease and cause to be terminated, and it will not permit its Representatives to continue, any existing activities, discussions or that is intended negotiations with any Persons with respect to or could reasonably be expected to lead to, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant except with respect to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction transactions contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Merck & Co Inc), Agreement and Plan of Merger (Sirna Therapeutics Inc)
Acquisition Proposals. (a) The Company agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and the Company shall, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not to (i) directly or indirectly initiate, solicit, solicit or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal that constitutes, or could may reasonably be expected to lead to, an Acquisition ProposalProposal with respect to the Company, (ii) participate or engage in discussions 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 that has made an Acquisition Proposal with respect to the Company or to any person in contemplation Person that the Company, any of its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition ProposalProposal with respect to the Company, or (iii) accept an Acquisition Proposal with respect to the Company or enter into any agreement, including any letter of intent, memorandum of understanding, intent or 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 Acquisition Proposal principle (other than an Acceptable Confidentiality Agreement permitted pursuant to in circumstances contemplated in the penultimate sentence of this Section 6.25.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to the Company or (By) requiring, intended to causethat would require, or which could reasonably be expected to cause would have the effect of causing, the Company to abandon, terminate or fail to consummate the merger First Merger or any the other transaction transactions contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives Representative of the Company or any of its Subsidiaries, whether or not such representative Representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwiseauthorized, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors the Company Board may take any actions described in clause (ii) of this Section 6.2(a5.3(a) with respect to a third party if at any time prior to obtaining the Effective Time Company Required Vote if, prior to such vote, (x) the Company receives a written Acquisition Proposal with respect to the Company from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officersRepresentatives after the date of this Agreement), directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors Company Board determines in good faith (after consultation with its financial advisors and outside legal counseladvisors) that such proposal could constitutes or is reasonably likely to result in a Superior Proposal with respect to the Company, and (z) the Company Board determines in good faith, after consultation with its outside counsel, that the failure to participate in such negotiations or discussions or to furnish such information or data to such third party would be reasonably expected to lead to, a Superior Proposalbe inconsistent with the Company Board’s fiduciary duties under applicable Law, provided that (I) the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled Agreement and (II) actions taken pursuant to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver this sentence shall not constitute a breach violation of clause (i) of this Section 6.25.3(a). Nothing contained in this Section 6.2 5.3 shall prohibit the Company or its board of directors the Company Board from taking and disclosing to the Company’s shareholders stockholders a position with respect to an Acquisition Proposal with respect to the Company pursuant to Rule 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 applicable Law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Veritas DGC Inc), Agreement and Plan of Merger (General Geophysics Co)
Acquisition Proposals. (a) The Company agrees thatwill, except as expressly contemplated by this Agreement, neither it nor any will cause each of its Subsidiaries shalland each of its Subsidiaries’ officers, directors and employees to, and the will use reasonable best efforts to cause each of its other Representatives to, cease any discussions or negotiations with any Persons that may be ongoing with respect to a Company shallTakeover Proposal. The Company will, and shall cause will direct each of its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) Representatives to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly initiate, through another Person solicit, initiate or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding, or the making or submission of any proposal or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate or engage in discussions 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 that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could would reasonably be expected to lead to, a Superior Company Takeover Proposal, provided (ii) engage in or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person any non-public information in connection with or for the purpose of encouraging or facilitating, a Company Takeover Proposal, or (iii) enter into any letter of intent or Contract providing for a Company Takeover Proposal. The Company will, and will direct each of its Representatives to, promptly (i) request (to the extent it has not already done so prior to the date of this Agreement) any Person that has executed a confidentiality or non-disclosure agreement in connection with any actual or potential Company Takeover Proposal or the Company shall not deliver any Company’s sale process for all or a portion of the Company’s Building Products business unit that remains in effect as of the date of this Agreement (a “Prior NDA”) to promptly return or destroy all confidential information to in the possession or under the control of such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding Person or its Representatives in accordance with the foregoing, the Company shall be entitled to terms of such Prior NDA and (ii) waive any “standstill” or similar provision in provisions of any Acceptable Confidentiality Agreement which would preclude such Person Prior NDA that prevents the counterparty thereto from making an Acquisition a Company Takeover Proposal to without the Company, provided that such waiver is for the limited purpose prior consent of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable LawCompany Board.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Westlake Chemical Corp), Agreement and Plan of Merger (Axiall Corp/De/)
Acquisition Proposals. (a) The Company agrees thatwill notify the --------------------- Purchaser immediately if any proposals are received by, except as expressly contemplated by this Agreementany information is requested from, neither it nor or any of its Subsidiaries shall, and negotiations or discussions are sought to be initiated or continued with the Company shall, and shall cause or its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directors, employees, investment bankers, attorneys, accountantsaccountants or other agents, financial advisors, agents and other representatives not to in each case in connection with any Acquisition Proposal (ias hereinafter defined) directly or indirectly initiate, solicit, knowingly encourage or facilitate (including by way of furnishing information) any inquiries or the possibility or consideration of making or submission an Acquisition Proposal ("Acquisition Proposal -------------------- Interest") indicating, in connection with such notice, the name of the Person -------- indicating such Acquisition Proposal Interest and the terms and conditions of any proposal proposals or offers. The Company agrees that constitutesit will immediately cease and cause to be terminated any existing activities, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate or engage in discussions or negotiations withwith any parties conducted heretofore with respect to any Acquisition Proposal Interest. The Company agrees that it shall keep Parent informed, on a current basis, of the status and terms of any Acquisition Proposal Interest. As used in this Agreement, "Acquisition Proposal" shall mean any tender or exchange -------------------- offer involving the Company, any proposal for a merger, consolidation or other business combination involving the Company, any proposal or offer to acquire in any manner a substantial equity interest in, or disclose a substantial portion of the business or assets of, the Company (other than immaterial or insubstantial assets or inventory in the ordinary course of business or assets held for sale and other than the Xxxxxx Disposition), any non-public information proposal or data relating offer with respect to any recapitalization or restructuring with respect to the Company or any proposal or offer with respect to any other transaction similar to any of its Subsidiaries or afford access the foregoing with respect to the properties, books or records of the Company or any of its Subsidiaries to any Person that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to the transactions to be effected pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Saffron Acquisition Corp), Agreement and Plan of Merger (Sun Coast Industries Inc /De/)
Acquisition Proposals. (a) The Company agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and the Company shall, and shall cause its Subsidiaries Subsidiaries, and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause its and their respective officers, directors, investment bankers, attorneys, accountantsemployees, financial advisors, agents attorneys, accountants and other advisors, representatives and agents (collectively, “Representatives”) to, immediately cease and cause to be terminated immediately any activities, discussions or negotiations with any Persons that may be ongoing with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal (defined below). The Company also agrees that it will promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of any Acquisition Proposal to return or destroy all confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries, subject to the terms and conditions of such confidentiality agreements. As of the date hereof and prior to the Effective Time or earlier termination of this Agreement in accordance with Article VIII, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it or its Subsidiaries authorize any of their respective Representatives to, and the Company and each Subsidiary shall use their respective reasonable best efforts to cause the Representatives not to to, directly or indirectly, (i) directly or indirectly initiate, solicit, knowingly encourage or take any other action to knowingly facilitate (including by way of furnishing information) any inquiries regarding, or the making or submission of any proposal which constitutes, any Acquisition Proposal, (ii) enter into any agreement, arrangement or understanding related to any Acquisition Proposal or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement, (iii) initiate or participate in any way in any negotiations or discussions regarding an Acquisition Proposal or any inquiry or proposal that constitutes, or could reasonably be expected to lead to, an Acquisition ProposalProposal or (iv) amend or grant any waiver or release under any standstill or any similar agreement with respect to any class of the Company’s equity securities; provided, however, that, with respect to a bona fide, unsolicited written Acquisition Proposal made after the date hereof that does not result from a breach of this Section 6.3, at any time prior to obtaining the Company Stockholder Approval, the Company shall be entitled to (iix) furnish information with respect to the Company and its Subsidiaries to the Person making such Acquisition Proposal (and its Representatives) pursuant to a customary confidentiality agreement containing provisions not less restrictive of such Person than those in the Confidentiality Agreement (defined in Section 9.7), provided that all such information has previously been provided to Parent or is provided to Parent prior to or substantially concurrent with the time it is provided to such Person, and (y) participate or engage in discussions or negotiations withwith the Person making such Acquisition Proposal (and its Representatives) regarding such Acquisition Proposal, or disclose any non-public in each case commencing one business day after delivery of a written notice to Parent that it intends to furnish such information or data relating enter into such discussions or negotiations (a “Determination Notice”), if (but only if) the Board of Directors of the Company has determined in good faith by the date on which the Determination Notice is given (A) after consultation with a financial advisor of nationally recognized reputation, that the Acquisition Proposal constitutes or would reasonably be expected to lead to a Superior Proposal (defined below) and (B) after consultation with outside legal counsel, that the failure to provide such information or enter into such discussions or negotiations would present a reasonably substantial risk of a breach of the fiduciary duties of the Company’s Board of Directors to the Company Company’s stockholders under applicable Law. Without limiting the foregoing, it is agreed that any violation of any provision or term in the preceding sentence by any of its Subsidiaries or afford access to the properties, books or records Representative of the Company or any of its Subsidiaries to any Person that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement Section 6.3(a) by the Company. Notwithstanding anything The Company agrees that it will take the necessary steps to promptly inform the contrary in this Agreement, Representatives of the Company and its board Subsidiaries of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained obligations undertaken in this Section 6.2 shall prohibit 6.3 and in the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable LawConfidentiality Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Interpore International Inc /De/), Agreement and Plan of Merger (Biomet Inc)
Acquisition Proposals. (a) The Company agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and the Company shall, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not to to, (i) directly or indirectly initiate, solicit, solicit or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal that constitutes, or could may reasonably be expected to lead to, an Acquisition ProposalProposal with respect to the Company, (ii) participate or engage in discussions 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 that has made an Acquisition Proposal with respect to the Company or to any person in contemplation Person that the Company, any of its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition ProposalProposal with respect to the Company, or (iii) accept an Acquisition Proposal with respect to the Company or enter into any agreement, including any letter of intent, memorandum of understanding, intent or 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 Acquisition Proposal principle (other than an Acceptable Confidentiality Agreement permitted pursuant to in circumstances contemplated in the penultimate sentence of this Section 6.25.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to the Company or (By) requiring, intended to causethat would require, or which could reasonably be expected to cause would have the effect of causing, the Company to abandon, terminate or fail to consummate the merger Merger or any the other transaction transactions contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives Representative of the Company or any of its Subsidiaries, whether or not such representative Representative is so authorized and whether or not such representative Representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors the Company Board may take any actions described in clause (ii) of this Section 6.2(a5.3(a) with respect to a third party if Person at any time prior to obtaining the Effective Time Company Required Vote if, prior to such vote, (xw) the Company receives a bona fide written Acquisition Proposal with respect to the Company from such third party Person (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officersRepresentatives after the date of this Agreement), directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives(x) and (y) such proposal constitutes, or the Company’s board of directors Company Board determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could constitutes or is reasonably likely to lead to a Superior Proposal from the Person that made the applicable Acquisition Proposal with respect to the Company, (y) the Company Board determines in good faith (after consultation with its outside legal counsel) that failure to take such action would be inconsistent with its fiduciary duties to the Company and the stockholders of the Company under applicable Law, and (z) the Company Board determines in good faith (after consultation with its financial advisors and outside legal counsel) that the Person making such Acquisition Proposal is reasonably expected to lead to, a Superior have the ability to consummate such Acquisition Proposal, provided that the Company shall not deliver any information to such third party Person without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company ; no actions taken in accordance with this sentence shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach violation of clause (i) of this Section 6.25.3(a). Nothing contained in this Section 6.2 5.3 shall prohibit the Company or its board of directors the Company Board from taking and disclosing to the Company’s shareholders stockholders a position with respect to an Acquisition Proposal with respect to the Company pursuant to Rule 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 applicable Law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Stone Energy Corp), Agreement and Plan of Merger (Bois D Arc Energy, Inc.)
Acquisition Proposals. (a) The Company agrees thatExcept as contemplated hereby, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and the Company shall, shall not (and shall use its best efforts to cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directors, directors and employees and any investment bankers, attorneys, accountantsbanker, financial advisorsadvisor, agents and attorney, accountant, or other representatives agent or representative retained by it not to (ito) directly or indirectly indirectly, initiate, solicit, knowingly solicit or encourage or facilitate (including by way of furnishing information) information or assistance), or take any other action to facilitate, any inquiries or the making or submission of any proposal that constitutesrelating to, or could that may reasonably be expected to lead to, the acquisition of all or a significant part of the business and properties or capital stock of the Company, whether by merger, purchase of assets, tender offer or otherwise with a third party other than Parent (an "Acquisition Proposal"), or enter into discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain an Acquisition Proposal, or agree to or endorse any Acquisition Proposal, or authorize or permit any of the officers, directors, employees or agents of the Company or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company to take any such action. The Company shall as promptly as practicable notify Parent of all relevant terms of any such inquiries or proposals received by the Company and, if such inquiry or proposal is in writing, the Company shall as promptly as practicable deliver or cause to be delivered to Parent a copy of such inquiry or proposal. Notwithstanding the foregoing, nothing shall prohibit the Company's Board of Directors from (iia) participate furnishing information to, or engage in entering into discussions or negotiations with, any persons 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 that has made entity in connection with an unsolicited bona fide proposal in connection with an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreementif, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal only to the extent required by Applicable Law.that (i) such unsolicited bona fide proposal is on terms that the Company's
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Harcor Energy Inc), Agreement and Plan of Merger (Seneca West Corp)
Acquisition Proposals. (a) The Company agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and the Company shall, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not to to, (i) directly or indirectly initiate, solicit, solicit or knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries regarding or the making or submission of any proposal that constitutes, or could may reasonably be expected to lead to, an Acquisition ProposalProposal with respect to the Company, (ii) participate or engage in discussions 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 that has made an Acquisition Proposal with respect to the Company or to any person in contemplation Person that the Company, any of its Subsidiaries or any of their respective Representatives knows or has reason to believe is contemplating making an Acquisition ProposalProposal with respect to the Company, or (iii) accept an Acquisition Proposal with respect to the Company or enter into any agreement, including any letter of intent, memorandum of understanding, intent or 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 Acquisition Proposal principle (other than an Acceptable Confidentiality Agreement permitted pursuant to in circumstances contemplated in the penultimate sentence of this Section 6.25.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal with respect to the Company or (By) requiring, intended to causethat would require, or which could reasonably be expected to cause would have the effect of causing, the Company to abandon, terminate or fail to consummate the merger Mergers or any the other transaction transactions contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives Representative of the Company or any of its Subsidiaries, whether or not such representative Representative is so authorized and whether or not such representative Representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors the Company Board may take any actions described in clause (ii) of this Section 6.2(a5.3(a) with respect to a third party if at any time prior to obtaining the Effective Time Company Required Vote if, prior to such vote, (x) the Company receives a bona fide written Acquisition Proposal with respect to the Company from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officersRepresentatives after the date and in violation of this Agreement), directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors Company Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that such proposal could constitutes or is reasonably be expected likely to lead to, result in a Superior Proposal from the third party that made the applicable Acquisition Proposal with respect to the Company, and (z) the Company Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counsel) that the third party making such Acquisition Proposal has the financial and legal capacity to consummate such Acquisition Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company ; no actions taken in accordance with this sentence shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach violation of clause (i) of this Section 6.25.3(a). Nothing contained in this Section 6.2 5.3 shall prohibit the Company or its board of directors the Company Board from taking and disclosing to the Company’s shareholders stockholders a position with respect to an Acquisition Proposal with respect to the Company pursuant to Rule 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 applicable Law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Houston Exploration Co), Agreement and Plan of Merger (Forest Oil Corp)
Acquisition Proposals. (a) The Except as expressly permitted by this Section 6.12, the Company agrees thatthat it will not, except as expressly contemplated by this Agreement, neither it nor any and will cause each of its Subsidiaries shall, and the Company shall, its and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directorsdirectors and employees, and will use its reasonable best efforts to cause its and their respective agents, advisors, financing sources, investment bankers, attorneys, accountants, financial advisors, agents attorneys and other representatives (collectively with officers, directors and employees, “Representatives”), not to to, directly or indirectly, (i) directly or indirectly initiate, solicit, knowingly encourage or knowingly facilitate (including by way of furnishing information) any inquiries or proposals regarding, or the making or submission of any proposal or offer that constitutes, or could reasonably be expected to lead to, an any Acquisition Proposal, (ii) engage or participate or engage in any discussions or negotiations withwith any person concerning any Acquisition Proposal, (iii) disclose or disclose provide any non-public confidential or nonpublic information or data relating to the Company to, or otherwise cooperate in any of its Subsidiaries or afford way with, any person in connection with any Acquisition Proposal (including by affording access to the personnel, properties, books books, records or records assets of the Company or any of its Subsidiaries to any Person that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, Subsidiaries) or (iiiiv) accept an Acquisition Proposal or unless this Agreement has been terminated in accordance with its terms, enter into any agreementterm sheet, including any letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreementagreement (whether written or oral, arrangement binding or understanding, nonbinding) (Aother than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) constituting or related to, or that is intended relating to or could reasonably be expected to lead to, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiringprovided, intended to causehowever, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of that the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of shall not prevent the Company or its Representatives from contacting any person who has made an Acquisition Proposal or inquiry or proposal relating thereto solely for the purpose of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf seeking clarification of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Companyterms and conditions thereof). Notwithstanding anything to the contrary in this Agreementforegoing, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time receipt of the Requisite Company Vote, in the event the Company receives an unsolicited bona fide written Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, (x) furnish or cause to be furnished confidential or nonpublic information or data to, (y) participate in negotiations or discussions with and (z) afford access to its and their personnel, properties, books, records and assets to the Company receives a written person making the Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any person’s Representatives) if and only if its Board of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines Directors concludes in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal financial matters, its financial advisors) that failure to the extent required by Applicable take such actions would be more likely than not to result in a violation of its fiduciary duties under applicable Law.; provided, further, that prior to
Appears in 1 contract
Samples: Version Agreement (Cascade Bancorp)
Acquisition Proposals. (a) The Company agrees thatshall not, except as expressly contemplated by this Agreement, neither it nor and shall not authorize any of its Subsidiaries shallor Representatives to, and the Company shall, and shall cause will not permit any of its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) or Representatives to, cause their respective officersdirectly or indirectly, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly initiate, solicit, initiate or knowingly encourage, or take any other action to facilitate, the submission of any Acquisition Proposal or (ii) participate in or knowingly encourage any discussion or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate (including by way of furnishing information) any inquiries or the making or submission of of, any proposal that constitutes, constitutes or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate or engage in discussions 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 that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 may reasonably be expected to lead to, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiringProposal; provided, intended to causehowever, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of that the foregoing restrictions by any shall not prohibit the Board of the Company’s Subsidiaries or by any representatives Directors of the Company or the Special Committee from furnishing information to, or entering into discussions or negotiations with, any of its Subsidiaries, whether person or not such representative is so authorized and whether or not such representative is purporting entity that makes an unsolicited Acquisition Proposal prior to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach approval of this Agreement by the Company. Notwithstanding anything Company Stockholders if, and only to the contrary extent that, (A) the Board of Directors of the Company or the Special Committee, after consultation with its outside legal counsel, determines in this good faith that the failure to take such action would be inconsistent with its fiduciary obligations to the Company Stockholders under applicable Delaware Law, (B) prior to taking such action, the Company receives from such person or entity an executed agreement in reasonably customary form relating to the confidentiality of information to be provided to such person or entity (provided, that if the Company enters into such confidentiality agreement with respect to such Acquisition Proposal that contains provisions that are less protective in any material respect to the Company than the Confidentiality Agreement, the Company agrees to amend the Confidentiality Agreement so as to provide Crescent the benefit of such less protective provisions), and (C) the Board of Directors of the Company or the Special Committee concludes in good faith, based upon discussions with its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect independent financial advisor, that the Acquisition Proposal is reasonably expected to lead to a third party if at Superior Proposal. The Company shall provide prompt (but in no event less than two business days after receipt of any time prior Acquisition Proposal or inquiry) oral and written notice to the Effective Time Parent of (xa) the Company receives a written Acquisition Proposal from such third party (and receipt of any such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could inquiry which may reasonably be expected to lead to any Acquisition Proposal, (b) the material terms and conditions of such Acquisition Proposal or inquiry, (c) the identity of such person or entity making any such Acquisition Proposal or inquiry, and (d) the Company's intention to furnish information to, a Superior Proposalor enter into discussions or negotiations with, provided that the such person or entity. The Company shall not deliver continue to keep Parent reasonably informed of the status and details of any such Acquisition Proposal or inquiry. All information provided to such third party without entering into an Acceptable Parent under this Section 5.9 shall be kept confidential by Parent in accordance with the terms of the Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Law.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Loehmanns Holdings Inc)
Acquisition Proposals. (a) The Company agrees thatIn the case of the Company, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shallshall not, and it shall cause the Company shallSubsidiaries, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) todirectors, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly initiate, solicit, knowingly encourage or facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate or engage in discussions 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 employees of the Company or any of its Subsidiaries to any Person that has made an Acquisition Proposal or to any person in contemplation of an Acquisition ProposalCompany Subsidiaries, or (iii) accept an Acquisition Proposal or enter into any agreementof their respective attorneys, including any letter of intentbankers, memorandum of understandingaccountants, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement agents or other similar agreementadvisors (collectively, arrangement the “Company Representatives”) not to, solicit or understanding, (A) constituting encourage inquires or related proposals with respect to, or that is intended furnish any nonpublic information relating to or could reasonably be expected to lead toparticipate in any negotiations or discussions concerning, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) acquisition or (B) requiring, intended to cause, purchase of all or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation a substantial portion of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives assets of the Company or any of its Subsidiaries, whether the Company Subsidiaries or not such representative is so authorized and whether any merger or not such representative is purporting to act on behalf of other business combination with the Company or any of its the Company Subsidiaries other than as contemplated by the Plan; and the Company shall notify Purchaser immediately if and the terms of any such inquiries or otherwiseproposals are received by, shall be deemed or any such negotiations or discussions are sought to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreementinitiated with, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries the Company Subsidiaries. All pending negotiations or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) discussions by Company Representatives have been terminated and (y) such proposal constitutes, or the Company’s board confidential information has been destroyed and returned as provided in the applicable confidentiality agreement. Nothing in the Plan will prevent the Company or the Company Board from: (i) providing information in response to a request therefore by a person who has made an unsolicited bona fide written proposal for an acquisition or purchase of directors the type described in the preceding sentence; or (ii) engaging in any negotiations or discussions with any person who has made such an unsolicited bona fide written proposal, if and only to the extent that, in each such case referred to in clause (i) or (ii), the Company Board determines in good faith (after consultation with its financial advisors and outside legal counseladvisors) that the proposal could reasonably result in a transaction more favorable to the holders of shares, as a group in their capacity as shareholders of Company Common Stock, from a financial point of view than the Merger or if counsel to the Company advises the Company Board of Directors that the failure to furnish information, negotiate or enter into appropriate agreements with such proposal person could reasonably be expected to lead tosubject the Company’s directors to liability for breach of their fiduciary duties or for failure to conform to the requirements of the securities laws, a Superior Proposal, provided that in each case subject to the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreementprovisions of Article VII. Notwithstanding If negotiations or discussions are initiated in accordance with the foregoingpreceding sentence, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided agrees that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Lawit will notify Purchaser immediately.
Appears in 1 contract
Acquisition Proposals. (a) The Company agrees thatDuring the Interim Period, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and the Company shallshall not, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) not to, and shall instruct and use reasonable best efforts to cause its and their respective officersRepresentatives not to, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (ia) directly or indirectly initiate, solicit, knowingly encourage enter into or facilitate (including by way of furnishing information) continue discussions, negotiations or transactions with, or respond to any inquiries or the making or submission of proposals by, any proposal that constitutesPerson with respect to, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate or engage in discussions or negotiations with, or disclose provide any non-public information or data relating to concerning the Company or any of its the Company’s Subsidiaries to any Person relating to, an Acquisition Proposal (other than to inform such Person of the Company’s obligations pursuant to this Section 7.5) or afford to any Person access to the business, properties, books assets, information or records personnel of the Company or any of its the Company’s Subsidiaries to any Person that has made an Acquisition Proposal or to any person in contemplation of connection with an Acquisition Proposal, or (iiib) accept an Acquisition Proposal or enter into any acquisition agreement, including merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding, understanding or 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 Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement agreement relating to an Acquisition Proposal, (each c) grant any waiver, amendment or release under any confidentiality agreement or the anti-takeover laws of any state for purposes of facilitating an “Acquisition Agreement”). Any violation of the foregoing restrictions Proposal, (d) otherwise knowingly encourage or facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal or (e) resolve or agree to do any of the foregoing. The Company during shall promptly (and in any event within two (2) Business Days after receipt thereof) notify Acquiror in writing of the 45-day period following execution receipt of such Acceptable Confidentiality Agreementany inquiry, proposal, offer or request for information received after the date hereof that constitutes an Acquisition Proposal and keep Acquiror reasonably informed of any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position material developments with respect to an any such inquiry, proposal, offer, request for information or Acquisition Proposal to the extent required by Applicable Law(including any material changes thereto).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Soaring Eagle Acquisition Corp.)
Acquisition Proposals. (a) The From the date hereof until the Closing Date or, if earlier, the termination of this Agreement in accordance with Article XI, the Company agrees that, except as expressly contemplated by this Agreement, neither it nor any of and its Subsidiaries shallshall not, and the Company shall instruct and use its reasonable best efforts to cause its representatives, not to, directly or indirectly: (i) initiate, solicit or engage in any negotiations with any Person with respect to, or provide any non-public information or data concerning the Company or any of the Company’s Subsidiaries to any Person relating to, an Acquisition Proposal or afford to any Person access to the business, properties, assets or personnel of the Company or any of the Company’s Subsidiaries in connection with an Acquisition Proposal, (ii) execute or enter into any acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other arrangement or agreement relating to an Acquisition Proposal, (iii) grant any waiver, amendment or release under any confidentiality agreement or the anti-takeover laws of any state, (iv) otherwise knowingly encourage or facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make an Acquisition Proposal or (v) agree or otherwise commit to enter into or engage in 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 affiliates (as such term in used in Rule 12b-2 under the Exchange Act) shall use its reasonable best efforts to cause its and their representatives to, cause cease any solicitations, discussions or negotiations with any Person (other than the parties and their respective officersrepresentatives) conducted heretofore in connection with an Acquisition Proposal or any inquiry or request for information that could reasonably be expected to lead to, directorsor result in, investment bankersan Acquisition Proposal. The Company shall promptly (and in any event within two Business Days) notify, attorneysin writing, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly initiate, solicit, knowingly encourage or facilitate (including by way SPAC of furnishing information) any inquiries or the making or submission receipt of any proposal inquiry, proposal, offer or request for information received after the date hereof that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate result in or engage in discussions 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 that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiringProposal, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation notice shall include a summary of the foregoing restrictions by material terms of such inquiry, proposal, offer or request for information. The Company shall promptly (and in any event within twenty-four (24) hours) keep SPAC reasonably informed of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) material developments with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written such inquiry, proposal, offer, request for information or Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or including any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Lawmaterial changes thereto).
Appears in 1 contract
Samples: Business Combination Agreement and Plan of Merger (SC Health Corp)
Acquisition Proposals. (a) The Company agrees thatUntil the Effective Time or, except as expressly contemplated by if earlier, the termination of this AgreementAgreement in accordance with Article ARTICLE VIII herein, neither it nor any of its Subsidiaries shallthe Company, and the Company shall, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under their representatives shall not, without the Exchange Act) to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to prior written consent of Buyer (i) directly or indirectly initiate, solicit, solicit or knowingly encourage or facilitate (including by way of furnishing information) any inquiries inquiry or the making or submission of any proposal or offer that constitutes, or could would reasonably be expected to lead to, an Acquisition ProposalProposal relating to the Company as a whole or the Television Business (but not the Online Business), (ii) engage in, enter into, continue or otherwise participate or engage in any discussions or negotiations withwith any person with respect to, or disclose provide any non-public information or data relating to concerning the Company or any of its Subsidiaries subsidiaries to any person relating to, an Acquisition Proposal, or any proposal or offer that would be reasonably expected to lead to an Acquisition Proposal, relating to the Company as a whole or the Television Business (but not the Online Business) or afford to any person access to the business, properties, books assets or records personnel of the Company or any of its Subsidiaries to any Person that has made an Acquisition Proposal or to any person subsidiaries in contemplation of connection with an Acquisition Proposal, or any proposal or offer that would be reasonably expected to lead to an Acquisition Proposal, relating to the Company as a whole or the Television Business (but not the Online Business), (iii) accept an Acquisition Proposal or enter into any acquisition agreement, including merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding, understanding or agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership or any other 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 Acquisition Proposal (other than an Acceptable Confidentiality Agreement as permitted pursuant to this Section 6.26.6(b)) or (B) requiring, intended relating to causeany Acquisition Proposal, or which could any proposal or offer that would be reasonably be expected to cause the Company lead to abandonan Acquisition Proposal, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Alternative Acquisition Agreement”). Any violation , (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement or any state takeover statute, other than a waiver of the foregoing restrictions any “don’t ask—don’t waive” provisions of any standstill agreements now in effect, (v) otherwise knowingly facilitate any such inquiries, proposals, discussions or negotiations or any effort or attempt by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person person to make an Acquisition Proposal Proposal, or any proposal or offer that would be reasonably expected to lead to an Acquisition Proposal, relating to the Company during as a whole or the 45-day period following execution Television Business (but not the Online Business), or (vi) resolve, propose or agree to do any of such Acceptable Confidentiality Agreementthe foregoing. The Company and its officers and directors shall, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking shall instruct and disclosing to cause the Company’s shareholders a position representatives, its Subsidiaries and their representatives to, immediately cease and terminate all discussions and negotiations with any persons that may be ongoing with respect to an Acquisition Proposal relating to the extent required by Applicable LawCompany as a whole or the Television Business (but not the Online Business), and as promptly as practicable thereafter deliver a written notice to each such person to the effect that the Company is ending all discussions and negotiations with such person with respect to any Acquisition Proposal relating to the Company as a whole or the Television Business (but not the Online Business), effective immediately, which notice shall also request such person to promptly return or destroy all confidential information concerning the Company and its Subsidiaries.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Digital Generation, Inc.)
Acquisition Proposals. The Company and its Subsidiaries shall not, and shall use commercially reasonable efforts to cause their respective directors, officers, employees, agents and authorized representatives not to, directly or indirectly, (a) The Company agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and the Company shall, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly initiate, solicit, solicit or knowingly encourage or otherwise knowingly facilitate (including by way of furnishing information) any inquiries with respect to, or the making of, any Acquisition Proposal or submission of any offer or proposal that constitutes, or could reasonably be expected to lead to, to an Acquisition Proposal, (iib) engage, continue or otherwise participate in any negotiations or engage in discussions or negotiations withconcerning, or disclose provide access to its properties, books and records or any non-public confidential information or data to, any Person 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 that has made an Acquisition Proposal or any offer or proposal that could reasonably be expected to lead to an Acquisition Proposal, (c) approve, endorse, recommend, or propose publicly to approve, endorse or recommend, any person in contemplation of an Acquisition Proposal, or (iiid) accept an Acquisition Proposal execute or enter into any agreementinto, 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 agreementagreement relating to any Acquisition Proposal, arrangement and the Company shall not resolve or understandingagree to do any of the foregoing. The Company shall immediately cease any solicitations, discussions or negotiations or other activities with any Person (Aother than the Parties) constituting in connection with an Acquisition Proposal. The Company also agrees that it will promptly request each Person (other than the Parties) that has prior to the date of this Agreement executed a confidentiality agreement in connection with its consideration of an Acquisition Proposal to promptly return or related todestroy all confidential information furnished to such Person by or on behalf of it or any of its subsidiaries prior to the date of this Agreement. 48 Agreement and Plan of Merger The Company shall promptly (and in any event within 24 hours of the Company obtaining knowledge thereof) notify Parent orally and in writing of the receipt of any inquiries, proposals or offers, any requests for information, or any requests for discussions or negotiations with the Company or any of its Representatives, in each case with respect to an Acquisition Proposal or any offer or proposal that is intended to or could reasonably be expected to lead to, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal after the date of this Agreement, which notice shall include a summary of the material terms of, and the identity of the Person making, such Acquisition Proposal (including, if applicable, copies of any such written requests, proposals or offers, including proposed agreements) and thereafter shall keep Parent informed, on a reasonably current basis, of any material developments related to the extent required by Applicable Lawterms, conditions and process associated with such proposals and offers.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Affinia Group Intermediate Holdings Inc.)
Acquisition Proposals. (a) The Company agrees thatshall not, except as expressly contemplated by this Agreementnor shall it authorize or permit any officer, neither it nor director or employee of, or any investment banker, attorney or other advisor or representative of, the Company or any of its Subsidiaries shallto, and directly or indirectly, (a) solicit, initiate or encourage the Company shall, and shall cause its Subsidiaries and affiliates submission of any Acquisition Proposal (as such term defined below) or (b) participate in used in Rule 12b-2 under the Exchange Act) any discussions or negotiations regarding, or furnish to any person any information with respect to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and or take any other representatives not action to (i) directly or indirectly initiate, solicit, knowingly encourage or facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate or engage in discussions 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 that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 may reasonably be expected to lead to, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Proposal; provided, however, that nothing contained in this Section 6.2) or (B) requiring, intended to cause5.7 shall prohibit the Company Board from furnishing information to, or which entering into discussions or negotiations with, any person or entity that makes an unsolicited Acquisition Proposal after the date hereof if, and only to the extent that, (i) the Company Board, after consultation with and based upon the advice of outside counsel, concludes in good faith that a failure to do so would result in a breach of its fiduciary duties to the shareholders of the Company under applicable law and (ii) the Company (y) provides reasonable notice to Buyer to the effect that it is taking such action and (z) receives from such person or entity an executed confidentiality agreement not less favorable to the 21 26 Company than the Confidentiality Agreement, except that such confidentiality agreement shall not prohibit such person or entity from making an unsolicited Acquisition Proposal to the Company Board. Notwithstanding anything in this Agreement to the contrary, the Company shall promptly advise Buyer orally and in writing of the receipt by it (or by any of the other entities or persons referred to above) after the date hereof of any Acquisition Proposal, or any inquiry that could reasonably be expected to cause lead to an Acquisition Proposal, the material terms and conditions of such Acquisition Proposal or inquiry, and the identity of the person or entity making any such Acquisition Proposal or inquiry, provided that the Company shall have no obligation to abandondisclose the identity of such person or entity if such disclosure would violate the terms of any agreement outstanding on the date hereof with such person or entity, terminate or fail the Company Board, after consultation with and based upon the advice of outside counsel, concludes in good faith that such disclosure would violate its fiduciary duties or would be otherwise inconsistent with applicable law. As used in this Agreement, "Acquisition Proposal" shall mean any bona fide proposal with respect to consummate a merger, consolidation, share exchange or similar transaction involving the merger Company or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of its Material Subsidiaries, or any purchase of all or a substantial portion of the foregoing restrictions by any of the Company’s Subsidiaries assets or by any representatives shares of the Company or any of its Material Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf any other business combination (including without limitation the acquisition of an equity interest therein) involving the Company or any of its Subsidiaries or otherwiseMaterial Subsidiaries, shall be deemed to be a breach of this Agreement by other than the Companytransactions contemplated hereby. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Law.5.8
Appears in 1 contract
Samples: Execution Copy Agreement and Plan of Merger (Metallurg Inc)
Acquisition Proposals. (a) The From the date of this Agreement until the earlier to occur of the Closing or the termination of this Agreement in accordance with its terms, the Company agrees thatshall not, except as expressly contemplated by this Agreement, neither it nor and shall not authorize or permit any of its Subsidiaries shallor any of its Subsidiaries’ officers, and directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company shall, and shall cause or any of its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officersdirectly or indirectly, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly initiate, solicit, knowingly encourage initiate or facilitate (including by way of furnishing information) encourage, or take any inquiries other action to facilitate, any inquiries, discussions or the making or submission of any proposal that constitutes, constitutes or could reasonably be expected to lead to, to an Acquisition Proposal, (ii) participate or engage in discussions or negotiations with, or disclose furnish 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 regarding the Company or any of its Subsidiaries to any Person that has made person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that would reasonably be expected to lead to an Acquisition Proposal, (iii) continue or otherwise participate in any discussions or negotiations, or otherwise communicate in any way with any person in contemplation of (other than Purchaser), regarding an Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal, or (iiiv) accept an Acquisition Proposal or enter into or consummate 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, understanding contemplating any Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) Transaction or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company requiring it to abandon, terminate or fail to consummate the merger or transactions contemplated hereby. Without limiting the foregoing, it is understood that any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions set forth in the preceding sentence by any of the Company’s Subsidiaries officer, director or by any representatives employee of the Company or any of its Subsidiariesthe Subsidiaries or any investment banker, whether financial advisor, attorney, accountant or not such other representative is so authorized and whether or not such representative is purporting to act on behalf of retained by the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement Section 5.1 by the Company. Notwithstanding anything the foregoing, prior to the contrary in adoption and approval of this AgreementAgreement by the Company’s stockholders at a meeting of the stockholders of the Company, this Section 5.1(a) shall not prohibit the Company from furnishing nonpublic information regarding the Company and its board of directors may take Subsidiaries to, or entering into discussions with, any actions described person in clause (ii) of this Section 6.2(a) with respect response to a third party if at any time prior an Acquisition Proposal that is submitted to the Effective Time Company by such person (xand not withdrawn) if (1) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged constitutes or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could is reasonably be expected to lead to, result in a Superior Proposal, provided that (2) the Company shall has not deliver violated any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding of the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained restrictions set forth in this Section 6.2 shall prohibit 5.1, (3) the Company or Company’s Board of Directors determines in good faith, after consultation with and based upon the advice of its board outside legal counsel, that such action is required in order for the Board of directors from taking and disclosing Directors to comply with its fiduciary obligations to the Company’s shareholders a position with respect stockholders under applicable law, and (4) at least two (2) Business Days prior to furnishing any nonpublic information to, or entering into discussions with, such person, the Company gives Purchaser written notice of the identity of such person and of the Company’s intention to furnish nonpublic information to, or enter into discussions with, such person and the Company receives from such person an Acquisition Proposal executed confidentiality agreement on terms no more favorable to such person than the extent required by Applicable Lawconfidentiality agreement between Purchaser and the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Commercefirst Bancorp Inc)
Acquisition Proposals. (a) The 3.3.1. After the execution of this Agreement and prior to the Effective Time, the Company agrees that, except as expressly contemplated by this Agreement, that neither it nor any of its Subsidiaries nor any of its or any of its Subsidiaries' officers or directors shall, and the Company shall, shall direct and shall use its best efforts to cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective its Subsidiaries' officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly initiate, solicit, knowingly encourage or facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate or engage in discussions 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 that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directorsemployees, investment bankers, attorneys, accountants, financial advisors, agents or other representativesrepresentatives (collectively, the "Representatives") and (y) such proposal constitutesnot to, directly or indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries by any Person not a party to this Agreement or the Company’s board making of directors determines in good faith (after consultation any proposal or offer by any Person not a party to this Agreement with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead respect to, a Superior merger, reorganization, share exchange, business combination, liquidation, dissolution, recapitalization, consolidation or similar transaction involving the Company or any purchase of, or offer to purchase, (i) 10% or more of the outstanding shares of the capital stock of the Company or capital stock of, or other equity or voting interests in, any of the Company's Subsidiaries, or (ii) assets or businesses of the Company and its Subsidiaries taken as a whole that constitute or represent 10% or more of the assets or businesses of the Company and its Subsidiaries (any indication of interest in any of the foregoing or inquiry, proposal or offer relating to or reasonably likely to lead to any of the foregoing being an "Acquisition Proposal"). The Company further agrees that neither it nor any of its Subsidiaries nor any of its or any of its Subsidiaries' officers or directors will, and that it will direct and use its best efforts to cause its Representatives not to, directly or indirectly, engage in or continue any discussions or negotiations with or provide any confidential information or data to any Person not a party to this Agreement relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, provided that the Company shall not deliver or otherwise facilitate any information effort or attempt to such third party without entering into make or implement an Acceptable Confidentiality AgreementAcquisition Proposal. Notwithstanding the foregoing, prior to receipt of the Company Requisite Vote, in the event that (i) the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making receive an Acquisition Proposal to and has not at any time violated the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach terms of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit 3.3.1, (ii) the Board of Directors of the Company determines in its good faith judgment (x) after receiving the advice of its financial advisor that this Acquisition Proposal is reasonably likely to result in a Superior Proposal and (y) after receiving the advice of its outside counsel that, in light of this Acquisition Proposal, if the Company fails to participate in discussions or negotiations with, or furnish confidential information or data to, the Person making the Acquisition Proposal, that the Board of Directors would be in violation of its board fiduciary duties under applicable Law and (iii) after giving Parent three Business Days notice of directors from taking and disclosing its intention to do so, the Company may, prior to the Company’s shareholders a position receipt of the Company Requisite Vote, engage in discussions and/or negotiations with respect to an the Person that made the Acquisition Proposal and/or furnish confidential information and data to that Person pursuant to a customary confidentiality agreement containing terms no less restrictive than those set forth in the Confidentiality Agreement previously entered into by the Company and Parent (the "Confidentiality Agreement"); provided that a copy of all written information furnished to the extent required by Applicable Law.Person that made the Acquisition Proposal is promptly provided to Parent. For purposes of this Agreement, a "
Appears in 1 contract
Acquisition Proposals. (a) The Company agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and the Company shall, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly initiate, solicit, knowingly encourage or facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate or engage in discussions 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 that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.25.3) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger Merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors the Company Board may take any actions described in clause (ii) of this Section 6.2(a5.3(a) with respect to a third party if at any time prior to obtaining the Effective Time Company Required Vote (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors Company Board determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 5.3 shall prohibit the Company or its board of directors the Company Board from taking and disclosing to the Company’s shareholders stockholders a position with respect to an Acquisition Proposal 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 applicable Law.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Patina Oil & Gas Corp)
Acquisition Proposals. (a) The Company agrees thatshall not, except as expressly contemplated by this Agreementnor shall it authorize or permit any officer, neither it nor director or employee of, or any investment banker, attorney or other advisor or representative of, the Company or any of its Subsidiaries shall, and the Company shall, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officersdirectly or indirectly, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly initiate, solicit, knowingly initiate or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate or engage in discussions 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 that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 may reasonably be expected to lead to, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to Proposal; provided, however, that nothing contained in this Section 6.2) or (B) requiring, intended to cause5.9 shall prohibit the Company Board from furnishing information to, or which entering into discussions or negotiations with, any person or entity that makes an unsolicited Acquisition Proposal after the date hereof if, and only to the extent that, (a) the Company Board, after consultation with and based upon the advice of outside counsel, concludes in good faith that a failure to do so could reasonably be expected to cause result in a breach of its fiduciary duties to the shareholders of the Company under applicable law and (b) the Company (x) provides reasonable notice to abandonNipsco to the effect that it is taking such action and (y) receives from such person or entity an executed confidentiality agreement not less favorable to the Company than the Confidentiality Agreement, terminate except that such confidentiality agreement shall not prohibit such person or fail entity from making an unsolicited Acquisition Proposal to consummate the merger or any other transaction contemplated by Company Board. Notwithstanding anything in this Agreement (each an “Acquisition Agreement”). Any violation to the contrary, the Company shall promptly advise Nipsco orally and in writing of the foregoing restrictions receipt by it (or by any of the Company’s Subsidiaries other entities or by persons referred to above) after the date hereof of any representatives Acquisition Proposal, or any inquiry that could reasonably be expected to lead to any Acquisition Proposal, the material terms and conditions of such Acquisition Proposal or inquiry, and the identity of the person or entity making any such Acquisition Proposal or inquiry, provided that the Company shall have no obligation to disclose the identity of such person or entity if such disclosure would violate the terms of any agreement outstanding on the date hereof with such person or entity, or the Company Board, after consultation with and based upon the advice of outside counsel, concludes in good faith that such disclosure would violate its fiduciary duties or would be otherwise inconsistent with applicable law. For purposes of this Agreement, "Acquisition Proposal" means any bona fide proposal with respect to a merger, consolidation, share exchange or similar transaction involving the Company or any of its Subsidiaries, or any purchase of all or a substantial portion of the assets or shares of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf any other business combination (including without limitation the acquisition of an equity interest therein) involving the Company or any of its Subsidiaries or otherwiseSubsidiaries, shall be deemed to be a breach of this Agreement by other than the Companytransactions contemplated hereby. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Law.5.10
Appears in 1 contract
Samples: Agreement and Plan of Merger (Nipsco Industries Inc)
Acquisition Proposals. (a) The Company agrees thatNeither CCI nor its directors, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and the Company shall, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directors, investment bankers, attorneys, accountantsemployees, financial advisors, legal counsel, accountants and other agents and other representatives not to shall (ia) encourage, initiate or solicit, directly or indirectly initiateindirectly, solicit, knowingly encourage or facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutesproposals by, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate or engage in discussions or negotiations with, any third party (other than Pentair and Pentair Subsidiary) concerning any merger, consolidation, sale of assets, tender offer, sale of shares or disclose any non-public information or data relating to the Company similar transaction involving CCI or any significant assets of its Subsidiaries CCI, other than the Merger (each an "Acquisition Proposal"), or afford access to the properties, books (b) disclose directly or records of the Company or any of its Subsidiaries indirectly to any Person that has made person preparing to make an Acquisition Proposal or to any person in contemplation of an Acquisition Proposalconfidential information regarding CCI, or (iiior(c) accept an Acquisition Proposal 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, commitment with any Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at providing for an acquisitive transaction, equity investment or sale of any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any significant assets of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality AgreementCCI. Notwithstanding the foregoing, the Company shall be entitled Board of Directors or any committee thereof appointed for purposes of the foregoing (a "Committee"), officers, employees, representatives and agents of CCI may (I) take action upon receipt of the advice of special legal counsel that such action is advisable in order to waive any “standstill” fulfill the fiduciary duties of the Board or similar provision in any Acceptable Confidentiality Agreement which would preclude the Committee, and (ii) provide confidential information regarding CCI to a potential purchaser upon the prior written request of such Person from making an Acquisition Proposal purchaser whom the Board or Committee reasonably believes (A) is qualified and creditworthy, (B) will not use such information to the Company, competitive disadvantage of CCI and (C) intends to make a serious offer which may result in a transaction more favorable to the shareholders of CCI than the consideration payable in connection with the Merger; provided that such waiver disclosure is made subject to an appropriate confidentiality agreement, and the request does not arise as a result of any solicitation for the limited purpose expression of enabling such Person to make an interest by CCI or any of its directors, officers, employees, financial advisors, legal counsel, accountants or other agents and representatives. CCI will notify Pentair immediately if any Acquisition Proposal or any request for confidential information is received, shall inform Pentair if CCI's Board or Committee has been advised by special legal counsel to consider such Acquisition Proposal in order to fulfill the Company during fiduciary duties of the 45-day period following execution Board of Directors and shall provide to Pentair such Acceptable Confidentiality Agreement, and information regarding any such waiver shall not constitute a breach of Acquisition Proposal or request for information as Pentair may reasonably request. No action contemplated or permitted by this Section 6.2. Nothing contained 4.8 shall in this Section 6.2 shall prohibit the Company any manner be construed or its board deemed to diminish, relieve or release any obligations of directors from taking and disclosing CCI or Pentair to the Company’s shareholders pay a position with respect termination fee or expense reimbursement pursuant to an Acquisition Proposal to the extent required by Applicable LawSections 10.2, 10.3 or 10.4 below.
Appears in 1 contract
Acquisition Proposals. (a) The Company agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and the Company shall, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly initiate, solicit, knowingly encourage or facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate or engage in discussions 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 that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “"Acquisition Agreement”"). Any violation of the foregoing restrictions by any of the Company’s 's Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s 's board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “"standstill” " or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s 's shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Law.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Santos International Holdings Pty Ltd.)
Acquisition Proposals. (a) The Company agrees thatFrom the date of this Agreement until the earlier to occur of the Closing or the termination of this Agreement in accordance with its terms, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and the Company shallshall not, and shall cause its Subsidiaries, and its and its Subsidiaries’ officers, directors and employees and any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under collectively, the Exchange Act“Representatives”) not to, cause their respective officersdirectly or indirectly, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly solicit, initiate, solicitinduce or knowingly encourage, or knowingly encourage or facilitate (including by way of furnishing information) take any inquiries other action to facilitate, any inquiries, offers, discussions or the making or submission of any proposal that constitutes, constitutes or could reasonably be expected to lead to, to an Acquisition Proposal, (ii) participate furnish any confidential or engage in discussions or negotiations with, or disclose any non-public information or data relating to regarding the Company or any of its Subsidiaries or afford access to the properties, books any such information or records of the Company or any of its Subsidiaries data to any Person that has made in connection with or in response to an Acquisition Proposal or to any person in contemplation an inquiry or indication of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 interest that is intended to or could reasonably be expected to lead toto an Acquisition Proposal, (iii) continue or otherwise participate in any discussions or negotiations, or otherwise communicate in any way with any Person (other than Purchaser), regarding an Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal, (v) release any Person from, waive any provisions of, or fail to use its reasonable best efforts to enforce any confidentiality agreement or standstill agreement to which the Company is a party or (vi) enter into or consummate any agreement, agreement in principle, letter of intent, arrangement or understanding contemplating any Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause requiring the Company to abandon, terminate or fail to consummate the merger or transactions contemplated hereby. Without limiting the foregoing, it is understood that any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions set forth in the preceding sentence by any of the Company’s Subsidiaries or by any representatives Representative of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement Section 5.1 by the Company. Notwithstanding anything the foregoing, before the adoption and approval of this Agreement by the holders of Company Common Stock and Company Class A Common Stock at the Company Shareholder Meeting, this Section 5.1(a) shall not prohibit the Company from furnishing non- public information regarding the Company and its Subsidiaries to, or entering into discussions with, any Person in response to an Acquisition Proposal that is submitted to the contrary Company by such Person (and not withdrawn) if (1) the Company’s Board of Directors determines in good faith, after consultation with the Company’s outside legal counsel and financial advisors, the Acquisition Proposal constitutes or is reasonably expected to result in a Superior Proposal, (2) the Company has not breached any of the covenants set forth in this Section 5.1, (3) the Company’s Board of Directors determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to violate the directors’ fiduciary obligations to the Company’s shareholders under applicable law, and (4) before furnishing any non-public information to, or entering into discussions with, such Person, the Company gives Purchaser written notice of the identity of such Person and of the Company’s intention to furnish non-public information to, or enter into discussions with, such Person and the Company receives from such Person an executed confidentiality agreement on terms no more favorable to such Person than the Mutual Confidentiality and Non-Disclosure Agreement, dated as of August 9, 2022, between Purchaser and the Company (the “Confidentiality Agreement”) is to Purchaser and the Company also provides Purchaser, prior to or substantially concurrently with the time such information is provided or made available to such Person, any non-public information furnished to such other Person that was not previously furnished to Purchaser. During the term of this Agreement, the Company shall not, and shall cause its Subsidiaries and its board of directors may take and their Representatives not to on its behalf, enter into any actions described binding acquisition agreement, merger agreement, or other definitive transaction agreement (other than a confidentiality agreement referred to and entered into in clause (ii) of accordance with this Section 6.2(a5.1(a)) with respect relating to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Law.
Appears in 1 contract
Samples: Agreement and Plan of Merger (First Community Bankshares Inc /Va/)
Acquisition Proposals. Except as contemplated hereby, the Company shall not (a) The Company agrees that, except as expressly contemplated by this Agreement, neither it nor and shall not permit any of its Subsidiaries shall, and the Company shallsubsidiaries to, and shall use its best efforts to cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directorsdirectors and employees and any investment banker, investment bankersattorney, attorneysaccountant, accountants, financial advisors, agents and or other representatives agent retained by it or any of its subsidiaries not to (ito) directly or indirectly initiate, solicit, knowingly solicit or encourage or facilitate (including by way of furnishing information) information or assistance), or take any other action to facilitate, any inquiries or the making or submission of any proposal that constitutesrelating to, or could that may reasonably be expected to lead to, an Acquisition Proposal, (ii) participate acquire all or engage in discussions a significant part of the business and properties 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 capital stock of the Company or any its subsidiaries, taken as a whole, whether by merger, purchase of its Subsidiaries to any Person that has made an Acquisition Proposal assets, tender offer or to any person in contemplation of an Acquisition Proposalotherwise (a "COMPETING TRANSACTION"), or (iii) accept an Acquisition Proposal or enter into discussions or negotiate with any agreement, including any letter person or entity in furtherance of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement such inquiries or other similar agreement, arrangement or understanding, (A) constituting or related toto obtain a Competing Transaction, or that is intended agree to or could reasonably be expected to lead to, endorse any Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to causeCompeting Transaction, or which could reasonably be expected to cause the Company to abandon, terminate authorize or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by knowingly permit any of the Company’s Subsidiaries officers, directors, employees or by any representatives agents of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company subsidiaries or any of its Subsidiaries investment banker, financial advisor, attorney, accountant or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated other representative retained by the Company or any of its Subsidiaries subsidiaries to take any such action. The Company shall as promptly as practicable notify Parent of all relevant terms of any such inquiries or proposals received by the Company or its subsidiaries and, if such inquiry or proposal is in writing, the Company shall as promptly as practicable deliver or cause to be delivered to Parent a copy of such inquiry or proposal. Notwithstanding the foregoing, nothing shall prohibit the Company's Board of Directors from (a) furnishing information to, or entering into discussions or negotiations with, any persons or entity in connection with an unsolicited bona fide proposal in connection with a Competing Transaction if, and only to the extent that (i) such unsolicited bona fide proposal is on terms that the Company's Board of their respective officersDirectors determines it cannot reject, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) based on applicable fiduciary duties and the advice of counsel and (yexcept with respect to furnishing information) such proposal constitutesfor which financing, to the extent required, is then committed, or in the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal judgment of the Board of Directors could reasonably be expected to lead be obtained, and (ii) prior to furnishing such information to, a Superior Proposalentering into discussions or negotiations with, provided that such person or entity the Company shall not deliver any provides written notice to Parent to the effect that it is furnishing information to such third party without to, or entering into an Acceptable Confidentiality Agreement. Notwithstanding discussions or negotiations with, such person or entity; or (b) complying with Rule 14d-9 or Rule 14e-2 promulgated under the foregoing, the Company shall be entitled Exchange Act with regard to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable LawCompeting Transaction.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Horizon CMS Healthcare Corp)
Acquisition Proposals. (a) The Until this Agreement has been terminated in accordance with Section 7.1 (and the payments, if any, required to be made in connection with such termination pursuant to Section 7.2(b) or 7.2(c) have been made), Company agrees thatshall not, except as expressly contemplated by this Agreement, neither it nor and shall not authorize or permit any of its Subsidiaries shall, and the Company shallAffiliates to, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective its Affiliates’ officers, directors, employees, consultants, representatives and other agents, including investment bankers, attorneys, accountants, financial advisors, agents accountants and other representatives advisors (collectively, the “Representatives”), not to to, directly or indirectly, (i) directly or indirectly initiate, solicit, knowingly encourage or facilitate (including by way of furnishing or disclosing information) ), solicit, initiate, make or facilitate the making of, or take any other action to facilitate any inquiries or the making or submission of any proposal that constitutes, constitutes or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate or engage in discussions 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 that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 may reasonably be expected to lead to, any Acquisition Proposal (including, without limitation, taking any action to make the provisions of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or regulation (including, without limitation, Sections 180.1130 through 180.1150, inclusive, of the WBCL) inapplicable to any transactions contemplated by an Acquisition Proposal), (ii) participate in any way in discussions or negotiations with, or furnish or disclose any information to, any Person (other than an Acceptable Confidentiality Agreement permitted pursuant Purchaser or any of its Representatives or Company’s Representatives) in connection with any Acquisition Proposal, (iii) release or permit the release of any Person from, or waive or permit the waiver of any provisions of, or otherwise fail to exercise its rights under, any confidentiality, standstill or similar agreement to which Company is a party or under which Company has any rights with respect to the divestiture of the voting securities or any material portion of the assets of Company (except for any such agreement with Purchaser or any of its Subsidiaries), (iv) effect a Change in Company Recommendation other than following a material breach by Purchaser of any of its representations, warranties or covenants contained in this Section 6.2Agreement, (v) approve or recommend, or publicly announce it is considering approving or recommending, any Acquisition Proposal or (Bvi) requiringenter into any agreement, intended letter of intent, agreement-in-principle, acquisition agreement or other instrument contemplating or otherwise relating to cause, any Acquisition Proposal or which could reasonably be expected to cause the requiring Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries transactions contemplated hereby, including the Merger. Any Change in Company Recommendation or proposed approval or recommendation of any Superior Proposal or the entry by Company into any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) agreement with respect to a third party if any Superior Proposal shall not change the approval of the Board of Directors of Company for purposes of causing any state takeover statute or other state law to be inapplicable to the transactions contemplated hereby, including the Merger. Notwithstanding the foregoing, at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided time that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding Requisite Shareholder Vote is obtained, Company and the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Law.Representatives may:
Appears in 1 contract
Acquisition Proposals. (a) The Company agrees thatDuring the Pre-Closing Period, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and the Company shallshall not, and shall cause each Company Subsidiary and its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) their respective stockholders, Affiliates, Representatives and other agents not to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly initiateindirectly, (except with respect to Parent and its Affiliates), (a) solicit, knowingly initiate or encourage any inquiries, offers or facilitate (including by way of furnishing information) proposals from any inquiries or the making or submission of any proposal that constitutesPerson which constitute, or could would reasonably be expected to lead to, the sale or transfer of any of the Company’s securities or all or a material portion of the Company’s assets, whether such transaction would take the form of a sale of capital stock, merger, liquidation, dissolution, reorganization, recapitalization, consolidation, sale of assets or otherwise (an “Acquisition Proposal”), or (b) negotiate with any other Person or enter into any letter of intent or other agreement relating to or contemplating an Acquisition Proposal or disclose to any Person any confidential information concerning Acquired Company or its businesses or assets. The Company further agrees that it shall promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal, ) notify Parent of the receipt of any Acquisition Proposal (ii) participate or engage which notice shall be provided orally and in discussions or negotiations withwriting and shall identify the Person making such Acquisition Proposal and set forth the material terms thereof), or disclose any request for non-public information or data relating to the any Acquired Company or any of its Subsidiaries or afford for access to the properties, books or records of the any Acquired Company or any of its Subsidiaries to by any Person that has made an Acquisition Proposal made, or to any person in contemplation the Knowledge of the Company intends to make, an Acquisition Proposal. The Company will, or and the Company will cause each Company Subsidiary, and its and their respective stockholders, Affiliates, Representatives and other agents to, immediately cease and cause to be terminated all discussions and negotiations, if any, that have taken place prior to the date of this Agreement with any Person (iiiother than Parent) accept an with respect to any Acquisition Proposal or enter into any agreementProposal. The Company shall request that all Persons (other than Parent) who executed a confidentiality, including any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement non- disclosure or other similar agreementagreement in connection with the consideration of a possible Acquisition Proposal, arrangement or understanding, (A) constituting or related toreturn to the Company, or that is intended destroy, all confidential information heretofore furnished to such Person by or could reasonably be expected to lead to, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwiseCompany, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything as promptly as practicable, subject to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution terms of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Lawagreement.
Appears in 1 contract
Samples: Sedar Version
Acquisition Proposals. (a) The Company agrees that, except as expressly contemplated by this Agreement, neither that it nor any of its Subsidiaries shall, and the Company shallshall not, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective its and its Subsidiaries' officers, directors, investment bankersagents, attorneysadvisors and affiliates not to, accountantssolicit or encourage inquiries or proposals with respect to, financial advisorsor engage in any negotiations concerning, agents and other representatives not or provide any confidential information to, or have any discussions with, any person relating to, any Acquisition Proposal; provided, however, that nothing in this Agreement shall (x) require the Company Board to recommend stockholder approval of the Merger following an Acquisition Proposal or (y) prevent Company or the Company Board from (i) directly or indirectly initiate, solicit, knowingly encourage or facilitate (including by way of furnishing information) engaging in any inquiries or the making or submission of any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate or engage in discussions or negotiations with, or disclose providing any non-public information or data relating to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person, (ii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of 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 that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, Common Stock or (iii) accept an Acquisition Proposal or enter into any agreementresponding to a tender offer in compliance with applicable law if and only if, 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 Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything with respect to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (iix) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time or (xy), as applicable, (A) the Company receives Board concludes in good faith that the Acquisition Proposal, if consummated, would result in a written Acquisition Proposal from such third party transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement; (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by B) the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors Board determines in good faith (after consultation based upon the advice of outside counsel that such action is legally necessary for it to act in a manner consistent with its financial advisors fiduciary duties under applicable law; and outside legal counsel(C) that such proposal could reasonably be expected prior to lead to, a Superior Proposal, provided that the Company shall not deliver providing any information or data to such third party without any person or entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoingdiscussions or negotiations with any Person, the Company Board notifies Zions immediately of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with Company or any Subsidiary thereof. Company shall immediately cease and cause to be entitled to waive terminated any “standstill” activities, discussions or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal negotiations conducted prior to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach date of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position Agreement with any parties other than with respect to any of the foregoing and shall use its reasonable best efforts to 34 enforce any confidentiality or similar agreement relating to an Acquisition Proposal. Company shall promptly (within 24 hours) advise Zions following the receipt by Company of any Acquisition Proposal and the substance thereof (including the identity of the person making such Acquisition Proposal and the terms, conditions and status thereof), and advise Zions of any developments with respect to such Acquisition Proposal immediately upon the extent required by Applicable Lawoccurrence thereof.
Appears in 1 contract
Acquisition Proposals. Section 5.6.1 From the date of this Agreement to the Effective Time, the Company and the Operating Partnership agree that the Company, the Operating Partnership and the Company Subsidiaries shall not authorize or permit any Company Representative to, directly or indirectly, take any action to (a) The Company agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and the Company shall, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly initiate, solicit, initiate or knowingly encourage or facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (iib) enter into, participate or otherwise engage in discussions or negotiations with, or disclose furnish any non-public information or data relating to the that is not available in Company or any of its Subsidiaries or afford access to the propertiesSEC Filings to, books or records of the Company or any of its Subsidiaries to any Person that has made an Acquisition Proposal or to any person in contemplation of with respect to an Acquisition Proposal, (c) withdraw, modify or amend the Company Recommendation in a manner adverse to Parent, (iiid) accept an approve or recommend any Acquisition Proposal or Proposal, (e) 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 principle or agreement or other similar agreement, arrangement or understanding, (A) constituting or related to, or that is intended with respect to or could reasonably be expected to lead to, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement a confidentiality agreement with a party to whom the Company is permitted pursuant to this provide information in accordance with Section 6.25.6.2), or (f) resolve or agree to do any of the foregoing actions (any action or failure to act set forth in the foregoing clauses (c), (d), or (f) (to the extent related to the foregoing clauses (c) or (B) requiringd)), intended to cause, or which could reasonably be expected to cause the a “Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition AgreementChange in Recommendation”). Any violation The Company shall as promptly as practicable following the execution of the foregoing restrictions this Agreement cease and cause to be terminated any discussions or negotiations with any persons conducted heretofore by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or with respect to any of its Subsidiaries or otherwise, shall be deemed to be a breach Acquisition Proposal. From the date of this Agreement by the Company. Notwithstanding anything to the contrary in this AgreementEffective Time, the Company and its board the Operating Partnership agree that the Company, the Operating Partnership and the Company Subsidiaries shall not waive, modify or amend any standstill or similar provision of directors may take any actions described agreement, letter or understanding that would in clause (ii) any way prohibit any Person from making or otherwise facilitating the making of this Section 6.2(a) with respect an Acquisition Proposal and the Company and the Operating Partnership shall pursue all remedies available to them upon a third party if breach by any Person of any such provisions; provided, however, that at any time prior to obtaining the Effective Time (x) Shareholder Approval of the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiatedMerger, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) Board may waive such proposal constitutes, or a provision if the Company’s board of directors Company Board determines in good faith (faith, after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information failure to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding grant a waiver would be inconsistent with the foregoing, duties of the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable trustees under applicable Law.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Liberty Property Limited Partnership)
Acquisition Proposals. (a) The Company agrees thatIn the case of the Company, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shallshall not, and it shall cause the Company shall, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) not to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly solicit or indirectly initiate, solicit, knowingly encourage or facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutesproposals with respect to, or could reasonably be expected furnish any nonpublic information relating to lead toor participate in any negotiations or discussions concerning, an Acquisition Proposal, (ii) participate any acquisition or engage in discussions purchase of all or negotiations witha substantial portion of the assets of, or disclose any non-public information or data relating to a substantial equity interest in, the Company or any of its the Company Subsidiaries or afford access to the properties, books any merger or records of other business combination with the Company or any of its the Company Subsidiaries to any Person that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction as contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of Plan; it shall instruct its and the foregoing restrictions by Company Subsidiaries' officers, directors, agents, advisors and affiliates to refrain from taking any action that would violate or conflict with any of the Company’s Subsidiaries foregoing; and it shall notify First Union immediately if any such inquiries or by proposals are received by, or any representatives of such negotiations or discussions are sought to be initiated with, the Company or any of its the Company Subsidiaries. However, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of nothing in this Plan will prevent the Company or the Company Board from (1) providing information in response to a request therefor by a person who has made an unsolicited BONA fide written proposal for an acquisition or purchase of the type described in the preceding sentence, if the Company receives from the person an executed confidentiality agreement on terms substantially similar to those contained in SECTION 5.05, or (2) engaging in any of its Subsidiaries negotiations or otherwisediscussions with any person who has made such an unsolicited BONA FIDE written proposal, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything if and only to the contrary extent that, (A) in this Agreementeach such case referred to in clause (1) or (2), the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors Board determines in good faith (after consultation with its financial advisors and outside legal counseladvisor) that such the proposal, if accepted, is reasonably likely to be consummated without significant delay, taking into account all legal, financial and regulatory aspects of the proposal could reasonably be expected and the person making the proposal, and would, if consummated, result in a transaction more favorable to lead to, the holders of shares of Company Common Stock from a Superior Proposal, provided that financial point of view than the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality AgreementMerger. Notwithstanding If negotiations or discussions are initiated in accordance with the foregoingpreceding sentence, the Company shall be entitled to waive agrees that it will notify First Union immediately and will from time-to-time (or at any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to time at the Company, provided that such waiver is for request of First Union) notify First Union of the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, progress thereof (including all current terms and any such waiver shall not constitute a breach of this Section 6.2other information that First Union may from time-to-time request). Nothing contained in this Section 6.2 shall prohibit the The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or its board of directors from taking and disclosing to the Company’s shareholders a position negotiations with any parties conducted heretofore with respect to an Acquisition Proposal any such acquisition or purchase. The Company agrees to use all reasonable efforts to enforce any confidentiality and/or "stand-still" contract to which it is a party and not to amend, terminate, waive or release any provision of any such contract in a manner that is material and adverse to its rights under the extent required by Applicable Lawcontract.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Jwgenesis Financial Corp /)
Acquisition Proposals. (a) The Company agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and the Company shall, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective its Subsidiaries’ officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not to to, (i) directly or indirectly indirectly, initiate, solicit, knowingly solicit or encourage or take any action to facilitate (including by way of furnishing non-public information) any inquiries inquiry regarding or the making or submission of any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) directly or indirectly, participate or engage in discussions or negotiations with, or disclose to any non-public Person (other than a party hereto) any information or data relating to the Company or any of its Subsidiaries Subsidiaries, or afford access to the properties, books or records of the Company or any of its Subsidiaries to to, or otherwise cooperate in any way with, any Person that has made an Acquisition Proposal or that the Company, any of its Subsidiaries or any of their respective Representatives knows or has reason to any person in contemplation of believe is contemplating making an Acquisition Proposal, or (iii) accept an Acquisition Proposal or enter into any agreement, arrangement or understanding, including any letter of intent, memorandum of understanding, intent or 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 Acquisition Proposal principle (other than an Acceptable Confidentiality Agreement permitted pursuant to in circumstances contemplated in the final sentence of this Section 6.25.3(a)), (x) providing for, constituting or relating to an Acquisition Proposal or (By) requiring, intended to causethat would require, or which could reasonably be expected to cause have the effect of causing, the Company to abandon, terminate or fail to consummate the merger Merger or any other transaction contemplated by this Agreement Agreement. Other than with respect to Parent and Merger Sub, the Company shall not (each an i) waive, modify, terminate, or fail to enforce any “Acquisition standstill” obligation of any Person, (ii) modify, waive, amend or terminate the Company Rights Agreement”), or (iii) render the restrictions on “Business Combinations” (as defined in Section 203 of the DGCL) under Section 203 of the DGCL inapplicable to any Person. Any violation of the foregoing restrictions of this Section 5.3(a) by any of the Company’s Subsidiaries or by any representatives Representative of the Company or any of its Subsidiaries, whether or not such representative Representative is so authorized and whether or not such representative Representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors the Company Board may take any actions described in clause (ii) of the first sentence of this Section 6.2(a5.3(a) with respect to a third party if at any time prior to obtaining the Effective Time Company Required Vote if, prior to such vote, (xw) the Company receives a bona fide written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officersRepresentatives in violation of this Agreement and did not otherwise result from a violation of this Agreement or any standstill agreement), directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives(x) and (y) such proposal constitutes, or the Company’s board of directors Company Board determines in good faith by resolution duly adopted (after consultation with its financial advisors and outside legal counselcounsel of nationally recognized reputation) that such proposal could constitutes or is reasonably be expected likely to lead to, result in a Superior Proposal from the third party that made the applicable Acquisition Proposal, (y) the Company Board determines in good faith by resolution duly adopted (after consultation with financial advisors and outside legal counsel of nationally recognized reputation) that the third party making such Acquisition Proposal has the financial and legal capability and capacity to consummate such Acquisition Proposal and (z) the Company Board determines after the receipt of advice from outside legal counsel that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties under applicable Law; provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, and the Company shall be entitled promptly provide or make available to waive Parent any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45material non-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit public information concerning the Company or any of its board of directors from taking and disclosing Subsidiaries that is provided to the Company’s shareholders a position with respect to an any Person making such Acquisition Proposal or such Person’s Representatives that was not previously provided or made available to the extent required by Applicable LawParent.
Appears in 1 contract
Acquisition Proposals. (a) The Company agrees that, except as expressly contemplated by this Agreement, that neither it nor any of its Subsidiaries nor any of their respective directors, officers or financial or legal advisors shall, and that it shall direct and use its best efforts to cause the Company shallCompany's and its Subsidiaries' other employees, advisors, agents, representatives and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) other intermediaries not to, cause their respective officersdirectly or indirectly, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly initiate, solicit, knowingly solicit or encourage or facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutesor offer from or by any Person (other than Parent) with respect to, or could reasonably be expected a transaction to lead toeffect, an Acquisition Proposala merger, (ii) participate reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or engage in discussions or negotiations with, or disclose any non-public information or data relating to similar transaction involving the Company or any of its Significant Subsidiaries or afford access to any purchase or sale of 10% or more of the propertiesassets (including, books without limitation, stock of its Subsidiaries) of the Company and its Subsidiaries, taken as a whole, or records any purchase or sale of, or tender or exchange offer for, voting securities of the Company or any of its Significant Subsidiaries to that, if consummated, would result in any Person that has (or the stockholders of such Person) beneficially owning securities representing 10% 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 Acquisition Proposal or affiliate thereof) being hereinafter referred to any person in contemplation of as an "Acquisition Proposal, or "); (iiiii) accept an Acquisition Proposal 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 binding on the Company or other similar agreement, arrangement its Subsidiaries that would approve or understanding, (A) constituting or related toendorse, or that is intended propose publicly to approve or could reasonably be expected to lead toendorse, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiringin connection with any Acquisition Proposal, intended to cause, or which could reasonably be expected to cause require the Company to abandon, terminate or fail to consummate the merger Merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries other transactions contemplated under this Agreement; or by (iii) enter into or participate in any representatives discussions or negotiations in connection with any Acquisition Proposal or inquiry with respect to any Acquisition Proposal, or furnish to any Person any nonpublic information with respect to its business, properties or assets in connection with any Acquisition Proposal or inquiry with respect to an Acquisition Proposal. For purposes of this Section 6.4, the term "Person" shall also include any "group," as defined in Section 13(d) of the Company Exchange Act, but shall exclude Parent or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Law.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Hancock John Financial Services Inc)
Acquisition Proposals. Except as contemplated hereby, the Company shall not (a) The Company agrees that, except as expressly contemplated by this Agreement, neither it nor and shall not permit any of its Subsidiaries shall, and the Company shallsubsidiaries to, and shall use its best efforts to cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directorsdirectors and employees and any investment banker, investment bankersattorney, attorneysaccountant, accountants, financial advisors, agents and or other representatives agent retained by it or any of its subsidiaries not to (ito) directly or indirectly initiate, solicit, knowingly solicit or encourage or facilitate (including by way of furnishing information) information or assistance), or take any other action to facilitate, any inquiries or the making or submission of any proposal that constitutesrelating to, or could that may reasonably be expected to lead to, the acquisition of all or a significant part of the business and properties or capital stock of the Company or its Subsidiaries, taken as a whole, whether by merger, purchase of assets, tender offer or otherwise with a third party other than Parent (an "ACQUISITION PROPOSAL"), or enter into discussions or negotiate with any person or entity in furtherance of such inquiries or to obtain an Acquisition Proposal, (ii) participate or engage in discussions agree to or negotiations withendorse any Acquisition Proposal, or disclose authorize or knowingly permit any non-public information of the officers, directors, employees or data relating to agents of the Company or any of its Subsidiaries or afford access to the propertiesany investment banker, books financial advisor, attorney, accountant or records of other representative retained by the Company or any of its Subsidiaries to take any Person that has made such action. The Company shall as promptly as practicable notify Parent of all relevant terms of any such inquiries or proposals received by the Company or its Subsidiaries and, if such inquiry or proposal is in writing, the Company shall as promptly as practicable deliver or cause to be delivered to Parent a copy of such inquiry or proposal. Notwithstanding the foregoing, nothing shall prohibit the Company's Board of Directors from (a) furnishing information to, or entering into discussions or negotiations with, any persons or entity in connection with an unsolicited bona fide proposal in connection with an Acquisition Proposal or if, and only to any person in contemplation the extent that (i) such unsolicited bona fide proposal is on terms that the Company's Board of an Acquisition ProposalDirectors determines it cannot reject, based on applicable fiduciary duties and the advice of counsel and (except with respect to furnishing information) for which financing, to the extent required, is then committed, or (iii) accept an Acquisition Proposal or enter into any agreementin the good faith judgment of the Board of Directors, 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 tobe obtained, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) furnishing such information to, entering into discussions or negotiations with, such person or entity the Company receives a provides written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by notice to Parent to the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constituteseffect that it is furnishing information to, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding discussions or negotiations with, such person or entity; or (b) complying with Rule 14d-9 or Rule 14e-2 promulgated under the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position Exchange Act with respect regard to an Acquisition Proposal to the extent required by Applicable LawProposal.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Pacific Rehabilitation & Sports Medicine Inc)
Acquisition Proposals. (a) The Company agrees that, except as expressly contemplated by From and after the date hereof until the termination of this Agreement, neither it Seller nor Seller S&L, nor any of its Subsidiaries shall, and the Company shall, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directors, investment bankersemployees, attorneys, accountants, financial advisorsrepresentatives, agents and other representatives not to or affiliates (i) including, without limitation, any investment banker, attorney or accountant retained by Seller or any of its Subsidiaries), will, directly or indirectly indirectly, initiate, solicit, solicit or knowingly encourage or facilitate (including by way of furnishing information) non-public information or assistance), or facilitate knowingly, any inquiries or the making or submission of any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate or engage in discussions 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 that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 may reasonably be expected to lead to, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to causeas defined below), or which could reasonably be expected enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to cause the Company obtain an Acquisition Proposal or agree to abandonor endorse any Acquisition Proposal, terminate or fail to consummate the merger authorize or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by permit any of the Company’s Subsidiaries its officers, directors or by any representatives of the Company employees or any of its Subsidiariessubsidiaries or any investment banker, whether financial advisor, attorney, accountant or not such other representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or retained by any of its Subsidiaries to take any such action; provided, however, that nothing contained in this Section 5.01 shall prohibit the Board of Directors of Seller from (i) furnishing information to, or otherwiseentering into discussions or negotiations with any, shall be deemed person or entity that makes an unsolicited written, bona fide proposal to be acquire Seller pursuant to a breach of this Agreement by the Company. Notwithstanding anything merger, consolidation, share exchange, business combination, tender or exchange offer or other similar transaction, if, and only to the contrary in this Agreement, extent that the Company and its board Board of directors may take any actions described in clause (ii) Directors of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines Seller concludes in good faith (faith, after consultation with its financial advisors and outside legal counsel) counsel and taking into account, among other things, all legal, financial, regulatory and other aspects of such Acquisition Proposal, and the nature of the person making the Acquisition Proposal, that such proposal could proposal, would, if consummated, result in a transaction that is more favorable to its stockholders (in their capacities as stockholders), from a financial point of view, than the transactions contemplated by this Agreement and is reasonably be expected capable of being completed (a "SUPERIOR PROPOSAL") and prior to lead furnishing such information to, or entering into discussions or negotiations with, such person or entity, Seller (x) provides reasonable notice to Buyer to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity and (y) receives from such person or entity an executed confidentiality agreement in reasonably customary form; (ii) complying with Rule 14e-2 promulgated under the Exchange Act with regard to a tender or exchange offer; or (iii) failing to make or withdrawing or modifying its recommendation, or (iv) entering into an agreement with respect to a Superior Proposal. For purposes of this Agreement, provided that "ACQUISITION PROPOSAL" shall mean any of the Company shall not deliver following (other than the transactions contemplated hereunder) involving Seller or any information of its Subsidiaries: (i) any merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution, or other similar transaction; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of 25% or more of the assets of Seller or Seller S&L, taken as a whole, in a single transaction or series of transactions; (iii) any tender offer or exchange offer for 25% or more of the outstanding shares of capital stock of Seller or the filing of a registration statement under the Securities Act of 1933, as amended (the "SECURITIES ACT"), in connection therewith; or (iv) any public announcement of a proposal, plan or intention to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding do any of the foregoing or any agreement to engage in any of the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Law.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Cameron Financial Corp /De/)
Acquisition Proposals. The Stockholder shall not take, directly or --------------------- indirectly, (anor shall the Stockholder authorize or permit its representatives or, to the extent within the Stockholder's control, its affiliates to take) The Company agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and the Company shall, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not action to (i) directly or indirectly initiate, solicit, knowingly encourage or facilitate (including by way of furnishing nonpublic information), solicit, initiate or facilitate any Acquisition Proposal (as defined in the Merger Agreement), (ii) enter into any letter of intent, term sheet or other agreement with respect to any Acquisition Proposal or (iii) participate in any way in discussions or negotiations with, or furnish any information to, any person in connection with, or take any other action to facilitate any inquiries or the making or submission of any proposal that constitutes, or could reasonably be expected to lead to, an any Acquisition Proposal; provided, (ii) participate however, that nothing in this -------- ------- Section 3.04 shall prevent the Stockholder, in his capacity as a director or engage executive officer of the Company from engaging in any activity permitted pursuant to Section 6.04 of the Merger Agreement. The Stockholder shall immediately cease and cause to be terminated all discussions or negotiations with, or disclose any non-public information or data relating commenced prior to the Company or date hereof with respect to any of its Subsidiaries or afford access to Acquisition Proposal. From and after the properties, books or records date of the Company or any execution of its Subsidiaries to any Person that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company Stockholder will as promptly as practicable communicate to Parent orally and in writing any inquiry received by him relating to any potential Acquisition Proposal and the material terms of any proposal or inquiry, including the identity of the person and its board affiliates making the same, that he may receive in respect of directors may take any actions described in clause such negotiations or discussions being sought to be initiated with the Company. The Stockholder shall (i) keep Parent fully informed on a prompt basis with respect to any developments with respect to the foregoing and (ii) provide to Parent as soon as practicable after receipt or delivery thereof with copies of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a all correspondence and other written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged material sent or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during from any third party in connection with any Acquisition Proposal. In addition, each of the 45-day period following execution Stockholders who is also an employee of the Company agrees that he will not enter into any employment, consulting or similar arrangement (or participate in any negotiations or discussions concerning such Acceptable Confidentiality Agreement, and arrangements) with any such waiver shall not constitute a breach person other than Parent or the Company prior to termination of this Section 6.2. Nothing contained Agreement in this Section 6.2 shall prohibit the Company or accordance with its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Lawterms.
Appears in 1 contract
Samples: Voting Agreement (Blair Thomas L)
Acquisition Proposals. (a) The From the date of this Agreement until the earlier to occur of the Closing or the termination of this Agreement in accordance with its terms, the Company agrees thatshall not, except as expressly contemplated by this Agreement, neither it nor and shall not authorize or permit any of its Subsidiaries shallor any of its Subsidiaries’ officers, and directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company shall, and shall cause or any of its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officersdirectly or indirectly, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly solicit, initiate, solicitinduce or encourage, knowingly encourage or facilitate (including by way of furnishing information) take any inquiries other action to facilitate, any inquiries, offers discussions or the making or submission of any proposal that constitutes, constitutes or could reasonably be expected to lead to, to an Acquisition Proposal, (ii) participate furnish any confidential or engage in discussions or negotiations with, or disclose any non-public information or data relating to regarding the Company or any of its Subsidiaries or afford access to the properties, books any such information or records of the Company or any of its Subsidiaries data to any Person that has made in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that would reasonably be expected to any person in contemplation of lead to an Acquisition Proposal, or (iii) accept continue or otherwise participate in any discussions or negotiations, or otherwise communicate in any way with any person (other than Purchaser), regarding an Acquisition Proposal Proposal, (iv) approve, endorse or recommend any Acquisition Proposal, (v) release any person from, waive any provisions of, or fail to use its reasonable best efforts to enforce any confidentiality agreement or standstill agreement to which the Company is a party or (vi) enter into or consummate 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 agreementletter of intent, arrangement or understanding, (A) constituting or related to, or that is intended to or could reasonably be expected to lead to, understanding contemplating any Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause requiring the Company to abandon, terminate or fail to consummate the merger or transactions contemplated hereby. Without limiting the foregoing, it is understood that any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions set forth in the preceding sentence by any of the Company’s Subsidiaries officer, director or by any representatives employee of the Company or any of its Subsidiariesthe Subsidiaries or any investment banker, whether financial advisor, attorney, accountant or not such other representative is so authorized and whether or not such representative is purporting to act on behalf of retained by the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement Section 5.1 by the Company. Notwithstanding anything the foregoing, prior to the contrary in adoption and approval of this AgreementAgreement by the Company’s stockholders at the Company Stockholder Meeting, this Section 5.1(a) shall not prohibit the Company from furnishing non-public information regarding the Company and its board Subsidiaries to, or entering into discussions with, any person in response to an Acquisition Proposal that is submitted to the Company by such Person (and not withdrawn) if (1) the Acquisition Proposal constitutes or is reasonably expected to result in a Superior Proposal, (2) the Company has not breached any of directors may the covenants set forth in this Section 5.1, (3) the Company’s Board of Directors determines in good faith, after consultation with outside legal counsel, that the failure to take such action would reasonably be expected to violate the directors’ fiduciary obligations to the Company’s stockholders under applicable law, and (4) prior to furnishing any actions described non-public information to, or entering into discussions with, such Person, the Company gives Purchaser written notice of the identity of such Person and of the Company’s intention to furnish non-public information to, or enter into discussions with, such Person and the Company receives from such Person an executed confidentiality agreement on terms no more favorable to such Person than the confidentiality agreement between Purchaser and the Company is to Purchaser. (b) The Company will notify Purchaser orally within twenty-four (24) hours and in clause writing (iiwithin two (2) calendar days) of this Section 6.2(a) receipt of any Acquisition Proposal, any request for non-public information that could reasonably be expected to lead to an Acquisition Proposal, or any inquiry with respect to a third party if at any time prior or that could reasonably be expected to lead to an Acquisition Proposal, including, in each case, the Effective Time (x) identity of the Company receives a written Acquisition Proposal from such third party (and Person making such Acquisition Proposal was not initiatedProposal, solicitedthe request or inquiry and the terms and conditions thereof, knowingly encouraged or facilitated and shall provide to Purchaser any written materials received by the Company or any of its Subsidiaries or in connection therewith. The Company will keep Purchaser informed of any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position developments with respect to an any such Acquisition Proposal to Proposal, request or inquiry promptly orally (within one (1) calendar day) and in writing (within two (2) calendar days) upon the extent required by Applicable Lawoccurrence thereof.
Appears in 1 contract
Acquisition Proposals. (a) The Company agrees that, except as expressly contemplated by this Agreement, that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and the Company shall, that it shall direct and shall use its best efforts to cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisorsits Subsidiaries' employees, agents and other representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to (i) to, directly or indirectly indirectly, initiate, solicit, knowingly solicit or encourage or take any other action to facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutesor offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or could any purchase or sale of all or any significant portion of the assets of the Company and its Subsidiaries, taken as a whole, or 25% or more of the equity securities of, it or any material equity interest in any of its Significant Subsidiaries (any such proposal or offer (other than a proposal or offer made by Parent or an affiliate thereof) being hereinafter referred to as an "Acquisition Proposal"), provided, however, that the Company may take any of the foregoing actions to the extent such actions are in connection with any transaction permitted under Section 4.1(d)(ii), (d)(iii) or (d)(iv) so long as the action is not reasonably be expected to lead tointerfere with or delay the consummation of the Merger. The Company further agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, an Acquisition Proposaland that it shall direct and use its best efforts to cause its and its Subsidiaries' employees, agents and representatives (ii) participate including any investment banker, attorney or engage in discussions or negotiations with, or disclose any non-public information or data relating to the Company accountant retained by it or any of its Subsidiaries Subsidiaries) not to, directly or afford access to the propertiesindirectly, books have any discussion with or records of the Company provide any confidential information or any of its Subsidiaries data to any Person that has made an Acquisition Proposal or relating to any person in contemplation of an Acquisition Proposal, or (iii) accept engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal 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 accept an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company or its Board of Directors shall be entitled permitted to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making (A) to the extent applicable, comply with Rule 14e-2(a) promulgated under the Exchange Act with regard to an Acquisition Proposal to the Company, Proposal; provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board Board of directors from taking and disclosing Directors shall not be permitted to the Company’s shareholders a position with respect to an recommend any such Acquisition Proposal unless it would be permitted to the extent required by Applicable Law.do so in accordance with clause (B) below, (B) in
Appears in 1 contract
Acquisition Proposals. (a) The Company agrees thatFrom the date hereof until the Closing Date or, except as expressly contemplated by if earlier, the termination of this AgreementAgreement in accordance with Article IX, neither it nor any of its the VS Entities and their Subsidiaries shallshall not, and the Company shall, VS Entities shall instruct and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, use their respective reasonable best efforts to cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly initiate any negotiations with any Person with respect to, or indirectly initiateprovide any non-public information or data concerning any VS Entity or any of the VS Entities’ Subsidiaries to any Person relating to, solicitan Acquisition Proposal or afford to any Person access to the business, knowingly encourage properties, assets or facilitate (including by way of furnishing information) any inquiries or the making or submission personnel of any proposal that constitutes, VS Entity or could reasonably be expected to lead to, any of the VS Entities’ Subsidiaries in connection with an Acquisition Proposal, (ii) participate or engage in discussions 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 that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal or enter into any acquisition agreement, including merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding, understanding or 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 Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement agreement relating to an Acquisition Proposal, (each iii) grant any waiver, amendment or release under any confidentiality agreement or the anti-takeover Laws of any state with respect to an “Acquisition Agreement”). Any violation of the foregoing restrictions Proposal, or (iv) otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting Person to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Companymake an Acquisition Proposal. Notwithstanding anything to the contrary in this Agreement, the Company VS Entities and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) their Subsidiaries and their respective representatives shall not be restricted pursuant to the foregoing sentence with respect to a third party if at any time prior to the Effective Time actions taken in connection with (x1) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) Pre-Closing Restructuring and (y2) such proposal constitutes, the arrangement of financing in order to facilitate the consummation of the Transactions or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose financing of enabling such Person to make an Acquisition Proposal to the Company during Surviving Corporation and/or the 45-day period VS Companies following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable LawClosing.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Horizon Acquisition Corp)
Acquisition Proposals. (a) The Company agrees that, except Except as expressly contemplated permitted by Section 6.1(b), from the date of this AgreementAgreement until the Effective Date or, neither it nor any if earlier, the valid termination of its Subsidiaries shallthis Agreement in accordance with Section 8.1, and the Company shallshall not, and shall cause each of its Subsidiaries subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their its and its subsidiaries' respective officers, directorsdirectors and employees not to, investment bankersand shall use its reasonable best efforts to cause its and their other respective Representatives not to, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly initiate, solicit, solicit or knowingly encourage or facilitate (including by way of furnishing information) any inquiries inquiries, proposals or offers with respect to, or the making or submission of any proposal that constitutesof, or that could reasonably be expected to lead to, any Acquisition Proposal, or the consummation thereof, (ii) enter into, continue or otherwise participate or engage in, facilitate or encourage, any negotiations or discussions concerning, or that could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate or engage in discussions provide access to its properties, books and records or negotiations with, or disclose any non-public information or data to any Person relating to an Acquisition Proposal, (iii) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Acquisition Proposal, (iv) waive, terminate, modify or fail to enforce any provision of any "standstill" or similar obligation of any Person (other than BidCo) with respect to the Company or any of its Subsidiaries subsidiaries, (v) take any action to make the provisions of any Takeover Law, or afford any restrictive provision of any applicable anti-takeover provision in the Certificate of Incorporation or Articles of Association, inapplicable to any transactions contemplated by any Acquisition Proposal, (vi) execute or enter into any merger agreement, acquisition agreement or other similar definitive agreement with respect to any Acquisition Proposal or (vii) authorize any of, or commit or agree to do any of, the foregoing. The Company shall, and shall cause each of its subsidiaries and its and its subsidiaries' respective officers, directors and employees to, and shall use its reasonable best efforts to cause its and their other respective Representatives to, immediately cease, (x) any solicitations, discussions, communications or negotiations with any Person (other than the Parties) in connection with an Acquisition Proposal, in each case that exist as of the date hereof and (y) all access of any Person (other than the Parties and their respective Representatives) to any electronic data room maintained by the Company with respect to the properties, books or records of transactions contemplated by this Agreement. The Company also agrees that it will promptly (and in any event within two (2) Business Days) deliver a written notice to each such Person to the effect that the Company is ending all such solicitations, discussions, communications and negotiations with such Person, effective immediately, which written notice shall also request each Person (other than the Parties) that has prior to the date hereof executed a confidentiality agreement in connection with its consideration of acquiring the Company to promptly return or destroy all non-public information furnished to such Person by or on behalf of it or any of its Subsidiaries to any Person that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time subsidiaries prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Lawdate hereof.
Appears in 1 contract
Acquisition Proposals. (a) The Company agrees that, except as expressly contemplated by this Agreement, neither it nor any Upon execution of its Subsidiaries shall, and the Company shall, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly initiate, solicit, knowingly encourage or facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate or engage in discussions 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 that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisorsemployees, agents and advisors will immediately cease any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal (as hereinafter defined). The Company may, directly or indirectly, furnish information and access, in each case only in response to requests that were not solicited by the Company (or any officer, director, employee, agent or advisor on its behalf) after the date of this Agreement, to any corporation, partnership, person or other representativesentity or group (each, a "Potential Acquiror") pursuant to confidentiality agreements, and (y) such proposal constitutesmay participate in discussions and negotiate with a Potential Acquiror concerning any merger, sale of assets, sale of shares of capital stock or similar transaction involving the Company’s board , if such Potential Acquiror has submitted a written proposal to the Board of directors Directors relating to any such transaction, and the Board of Directors determines in good faith (after consultation with its financial advisors independent legal counsel that the failure to provide such information or access or to engage in such discussions or negotiations would be inconsistent with their fiduciary duties to the Company's shareholders under applicable law. The Company shall notify Acquiror immediately if any such request or proposal, or any inquiry or contact with any Person with respect thereto, is made and outside legal counsel) shall keep Acquiror apprised of all developments that such proposal could reasonably be expected to lead toculminate in the Board withdrawing, modifying or amending its recommendation of the Merger and the other transactions contemplated by this Agreement. For purposes of this section 5.03, the term "Acquisition Proposal" means any proposal or offer for a Superior Proposalmerger, provided that asset acquisition or other business combination (other than the Merger contemplated by this Agreement) involving the Company shall not deliver and any information Potential Acquiror, or any proposal or offer to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding acquire a significant equity interest in, or a significant portion of the foregoingassets of, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute by a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable LawPotential Acquiror.
Appears in 1 contract
Acquisition Proposals. (a) The Company agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and the Company shallshall not, and shall cause each of its Subsidiaries Subsidiaries, and affiliates (as its and any such term in used in Rule 12b-2 under the Exchange Act) Subsidiaries' respective Representatives not to, cause their respective officersdirectly or indirectly, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly initiate, solicit, knowingly encourage or knowingly facilitate (including by way of furnishing informationinformation or assistance) any inquiries or expressions of interest or the making or submission of any proposal or offer that constitutes, or could reasonably be expected to lead toto (x) a proposal or offer with respect to a merger, an Acquisition Proposalreorganization, (ii) participate share exchange, recapitalization, liquidation, dissolution, consolidation or engage in discussions or negotiations withsimilar transaction involving, or disclose any non-public information purchase or data relating to series of related purchases directly or indirectly (including, by way of lease, exchange, sale, mortgage, pledge, tender offer, exchange offer or otherwise, as may be applicable), of 5% or more of the assets (based on fair market value) or any equity interests (in economic or voting power) in, the Company or any of its Subsidiaries Subsidiaries, (y) a breach of this Agreement or afford access to the properties, books Stockholders Agreement or records any interference with the completion of the Company Merger or (z) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of its Subsidiaries the foregoing (any of the foregoing inquiries, expressions of interest, proposals, or offers being referred to in this Agreement as an "Acquisition Proposal"), (ii) engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any Person that has made relating to an Acquisition Proposal Proposal, or otherwise facilitate the making of, or any effort or attempt to any person in contemplation of make or implement, an Acquisition Proposal, or (iii) accept agree to or recommend to its stockholders any Acquisition Proposal; provided, however, that nothing contained in this Section 5.3 shall prevent the Company from (i), based on the advice of outside legal counsel, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal or enter into providing any agreementother legally required disclosure to the stockholders of the Company (provided that, including except as otherwise permitted in this Section 5.3, the Company does not withdraw or modify, or propose to withdraw or modify, its position with respect to the Merger or approve or recommend, or propose to approve or recommend, an Acquisition Proposal), (ii) prior to receipt of the Required Company Vote, and subject to compliance by the Company with the immediately following sentence, providing information to, or engaging in any letter of intentnegotiations or discussions with, memorandum of understandingany Person who has made an unsolicited bona fide written Acquisition Proposal if, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement, arrangement or understanding, and only to the extent that (A) constituting the Board of Directors of the Company determines, in good faith after consultation with, and based upon the advice of, outside legal counsel, that providing such information and engaging in such discussions or related tonegotiations is required to comply with its fiduciary duties to the Company's stockholders under Applicable Law, or that is intended to or could reasonably be expected to lead to, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiringsuch Acquisition Proposal is not subject to any financing contingencies, intended (C) the Board of Directors determines in good faith that such Acquisition Proposal, if accepted, is reasonably likely to causebe consummated taking into account all legal, financial, regulatory and other aspects of the proposal and the Person making the proposal, and believes in good faith, after consultation with the Company Financial Advisor, would, if consummated, result in a transaction more favorable to the Company's stockholders from a financial point of view than the Merger (any such more favorable Acquisition Proposal, a "Superior Proposal") and (D) prior to taking such action and furnishing any information to any such party, the Company (x) provides reasonable notice to the Parent to the effect that it is taking such action, (y) provides such information to the Parent (if and to the extent it has not already done so), and (z) shall have entered into a confidentiality/standstill agreement on customary terms as advised by outside legal counsel, and in any event containing terms at least as stringent as those contained in the Confidentiality Agreement, or which could reasonably be expected (iii) prior to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation receipt of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Required Company or any of its SubsidiariesVote, whether or not recommending such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything Superior Proposal to the contrary in holders of Company Common Stock and withdrawing the prior recommendation of this Agreement, if and only to the Company and its board of directors may take any actions described extent that, in each case referred to in clause (ii) or (iii) above, the Board of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) Directors of the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiateddetermines, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors with, and based upon the advice of, outside legal counsel, that taking such action is required to comply with its fiduciary duties to the Company's stockholders under Applicable Law; provided, however, the Board of Directors of the Company may not approve or recommend (and in connection therewith, withdraw or modify its approval or recommendation of this Agreement or the Merger) that an Acquisition Proposal unless such proposal could reasonably be expected to lead to, an Acquisition Proposal is a Superior Proposal, provided that Proposal (and the Company shall not deliver have first terminated this Agreement in accordance with, and complied with its obligations set forth in, Section 7.1(g) and the time period referred to in Section 7.1(g) has expired). Prior to providing any information to such third party without or entering into discussions or negotiations with any Person in connection with an Acceptable Confidentiality Agreement. Notwithstanding the foregoingAcquisition Proposal by such Person, the Company shall notify the Parent immediately (orally and in writing) if any such inquiries, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations are sought to be entitled to waive initiated or continued with, any “standstill” or similar provision of its Representatives indicating, in any Acceptable Confidentiality Agreement which would preclude connection with such notice, the name of such Person from making an and the material terms and conditions of any proposals or offers and thereafter shall keep the Parent reasonably and promptly informed on the status and terms of any such proposals or offers and provide the Parent with a copy of any written Acquisition Proposal and all amendments and supplements thereto and the status of any such discussions or negotiations. The Company shall, and shall cause each of its Subsidiaries and each of the Company's and such Subsidiaries' Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted prior to the Company, provided date of this Agreement with any parties other than the Parent and the Merger Sub with respect to any of the foregoing. The Company agrees that such waiver is for it will immediately take the limited purpose of enabling such Person necessary steps to make an Acquisition Proposal inform promptly the individuals or entities referred to in the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach first sentence of this Section 6.2. Nothing contained 5.3(a) of the obligations undertaken in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Law5.3(a).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Massachusetts Mutual Life Insurance Co)
Acquisition Proposals. (a) The Neither the Company agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries subsidiaries shall, and the Company shall, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly initiateindirectly, through any officer, director, agent or otherwise, solicit, knowingly initiate or encourage or facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutesor offer from any Person relating to any acquisition or purchase of all or (other than in the ordinary course of business) any portion of the assets of, or could reasonably be expected to lead toany equity interest in, an Acquisition Proposal, (ii) participate or engage in discussions or negotiations with, or disclose any non-public information or data relating to the Company or any of its Subsidiaries subsidiaries or afford access to the propertiesany recapitalization, books business combination or records of similar transaction with the Company or any of its Subsidiaries subsidiaries (any communication with respect to the foregoing being an "Acquisition Proposal") or participate in any negotiations regarding, or furnish to any other Person that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 information with respect to, or that is intended to otherwise cooperate in any way with, or could reasonably be expected to lead toassist or participate in, facilitate or encourage, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) effort or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or attempt by any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by Person to do or seek any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiariesforegoing; provided, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwisehowever, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreementthat, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) purchase of Shares by the Company receives pursuant to the Offer, the Company may furnish information to, and negotiate or I-26 27 otherwise engage in discussions with, any party who delivers a written Acquisition Proposal from such third party (and such Acquisition Proposal which was not initiated, solicited, knowingly solicited or encouraged or facilitated by after the Company or any date of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or this Agreement if the Company’s board of directors Board determines in good faith by a majority vote (i) after consultation with and receipt of advice from its financial advisors and outside legal counsel, that failing to take such action is reasonably determined to constitute a breach of the fiduciary duties of the Board under applicable Law, (ii) after consultation with and receipt of advice from a nationally recognized investment banking firm, that such proposal is more favorable to the Company's Shareholders from a financial point of view than the Transactions (including any adjustment to the terms and conditions proposed by Purchasers in response to such Acquisition Proposal), (iii) that sufficient commitments have been obtained with respect to such Acquisition Proposal that the Board reasonably expects a transaction pursuant to such Acquisition Proposal could be consummated and (iv) that such proposal Acquisition Proposal is not subject to any regulatory approvals that could reasonably be expected to lead toprevent consummation. The Company will immediately cease all existing activities, a Superior discussions and negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. From and after the execution of this Agreement, provided that the Company shall not deliver immediately advise Purchasers in writing of the receipt, directly or indirectly, of any inquiries, discussions, negotiations, or proposals relating to an Acquisition Proposal (including the specific terms thereof and the identity of the other party or parties involved) and furnish to Purchasers within 48 hours of such receipt an accurate description of all material terms (including any changes or adjustments to such terms as a result of negotiations or otherwise) of any such written proposal in addition to any information provided to such any third party without entering into an Acceptable Confidentiality Agreementrelating thereto. In addition, the Company shall immediately advise Purchasers, in writing, if the Board shall make any determination as to any Acquisition Proposal as contemplated by the proviso to the first sentence of this Section 6.06. Notwithstanding the foregoing, the Company shall be entitled permitted to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude take such Person from making an Acquisition Proposal actions as may be required to comply with Rule 14e-2 of the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2Exchange Act. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable LawSECTION 6.07.
Appears in 1 contract
Acquisition Proposals. (a) The Company agrees that, except as expressly contemplated by this Agreement, neither it nor any From and after the execution of its Subsidiaries shall, the Merger Agreement until the earlier to occur of the termination of the Merger Agreement and the Company shallEffective Time, Fusion-io and shall cause its Subsidiaries subsidiaries are required to immediately cease any and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) toall existing activities, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not discussions or negotiations with any persons conducted with respect to (i) directly or indirectly initiate, solicit, knowingly encourage or facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutes, constitutes or could may reasonably be expected to lead to, an any Acquisition Proposal, (ii) as defined below. Fusion-io and its subsidiaries shall not, and shall not authorize or permit any of their respective directors, officers or other employees, controlled affiliates, or any investment banker, attorney or other advisors or representatives retained any of them to, directly or indirectly: • solicit, initiate, knowingly encourage, knowingly assist, knowingly facilitate or knowingly induce the making, submission or announcement of, any proposal or transaction that constitutes or may reasonably be expected to lead to an Acquisition Proposal or Acquisition Transaction, as defined below; • participate or engage in discussions or negotiations with, with any person (other than Parent or disclose Purchaser) regarding any proposal or transaction that constitutes or may reasonably be expected to lead to an Acquisition Proposal or Acquisition Transaction; • furnish any non-public information or data relating to the Company Fusion-io or any of its Subsidiaries subsidiaries, or afford access to the business, properties, assets, books or records of the Company Fusion-io or any of its Subsidiaries subsidiaries to, or take any other action intended to knowingly encourage, or assist or facilitate, any Person person (other than Parent or Purchaser) that is seeking to make or has made any proposal or transaction that constitutes or may reasonably be expected to lead to an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal or Transaction; • enter into any agreement, including any letter of intent, memorandum of understanding, definitive agreement or similar document or contract or commitment contemplating or otherwise relating to any Acquisition Proposal or Acquisition Transaction (other than a nondisclosure agreement meeting certain requirements specified in principlethe Merger Agreement); • approve, merger agreementendorse or recommend any Acquisition Proposal; • terminate, acquisition agreementamend, option agreement, joint venture agreement, partnership agreement waive or fail to enforce any rights under any standstill 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 Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company agreement between Fusion-io or any of its Subsidiariessubsidiaries and any person (other than Parent), whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwiseprovided, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreementhowever, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if that at any time prior to the Effective Time Offer Closing, Fusion-io may waive or provide a consent under any standstill to permit a party to make a confidential Acquisition Proposal in compliance with the requirements of the Merger Agreement; or • waive the applicability of all or any portion of Section 203 of the DGCL, the Delaware anti-takeover statute, in respect of any Person (xother than Parent and its Affiliates) in relation to any Acquisition Proposal or Acquisition Transaction. However, prior to the Company receives Acceptance Time, the Fusion-io Board may: • engage or participate in discussions or negotiations with any person that has made and not withdrawn a bona fide, written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by that the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines Fusion-io Board concludes in good faith (after consultation with its financial advisors advisor of nationally recognized standing and its outside legal counsel) constitutes or is reasonably likely to lead to a Superior Proposal (as defined below); and • furnish to such person non-public information relating to Fusion-io and its subsidiaries pursuant to a nondisclosure agreement the terms of which are no less favorable to Fusion-io than those contained in the Nondisclosure Agreement (which shall not include any provisions that would prevent or restrict Fusion-io or its representatives from providing any information to Parent to which Parent is entitled under the Merger Agreement or a direct or indirect standstill); provided, however, in order to take any action described in the two bullets above with respect to such Acquisition Proposal, any other Acquisition Proposal made by the same person or an affiliate of such person, or otherwise in favor of such person or an affiliate of such person, (i) neither Fusion-io nor any of its subsidiaries can have breached or violated in any material respect its obligations described in this Section 11—"The Merger Agreement; Other Agreements—Merger Agreement—Acquisition Proposals," (ii) the Fusion-io Board must have determined in good faith (after consultation with outside legal counsel) that the failure to take such proposal could action would reasonably be expected to constitute a breach of its fiduciary duties to Fusion-io's stockholders under Delaware law, (iii) Fusion-io must give Parent prior written notice of the Acquisition Proposal, and of Fusion-io's intention to take such actions and (iv) contemporaneously with furnishing any non-public information to such person, Fusion-io shall also furnish such non-public information to Parent to the extent not been previously furnished to Parent. Fusion-io shall promptly advise Parent in writing of any bona fide Acquisition Proposal, any request for information that would reasonably be expected to lead toto an Acquisition Proposal or Acquisition Transaction or any inquiry that would reasonably be expected to lead to any Acquisition Proposal or Acquisition Transaction, including the material terms and conditions thereof and the identity of the person or group making any such Acquisition Proposal, request or inquiry. Fusion-io is obligated to keep Parent promptly and reasonably informed of the status, including all material amendments or proposed amendments, of any Acquisition Proposal, request or inquiry. Fusion-io must also notify Parent at least 24 hours before any meeting of the Fusion-io Board at which the Fusion-io Board is reasonably expected to consider an Acquisition Proposal or Acquisition Transaction, an inquiry relating to a potential Acquisition Proposal or Acquisition Transaction, or a request to provide non-public information to any Person in relation to an Acquisition Proposal or Acquisition Transaction. Neither the Fusion-io Board nor any committee thereof shall (i) fail to make, withhold, withdraw, amend, qualify or modify, or propose to refuse to make, withhold, withdraw, amend, qualify or modify, the Fusion-io Board Recommendation, (ii) approve, endorse or recommend an Acquisition Proposal or Acquisition Transaction, (iii) fail to include the Fusion-io Board Recommendation in the Schedule 14D-9, or (iv) resolve, agree or publicly propose to take any of the foregoing actions (any action described in the preceding clauses (i), (ii), (iii) or this clause (iv) being referred to in this Offer to Purchase as a "Fusion-io Board Recommendation Change"). However, neither a "stop, look and listen" communication by the Fusion-io Board pursuant to and in compliance with Rule 14d-9(f) of the Exchange Act that also includes an express reaffirmation of the Fusion-io Board Recommendation, nor the approval or delivery by Fusion-io of either a Subsequent Determination Notice (as defined below) or an Intervening Event Notice (as defined below), is considered a Fusion-io Board Recommendation Change. The Fusion-io Board may effect a Fusion-io Board Recommendation Change with respect to any Acquisition Proposal at any time prior to the Acceptance Time, if the Fusion-io Board has received a bona fide, written Acquisition Proposal that constitutes a Superior Proposal that has not been withdrawn and: • neither Fusion-io nor any of its subsidiaries has breached or violated in any material respect its obligations described in this Section 11—"The Merger Agreement; Other Agreements—Merger Agreement—Acquisition Proposals," with respect to such Acquisition Proposal or any person making such Acquisition Proposal, • the Fusion-io Board has determined in good faith (after consultation with outside legal counsel and after considering any counter-offer or proposal made by Parent), that, in light of the foregoing Superior Proposal, provided that the Company shall not deliver any information failure by the Fusion-io Board to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall effect a Fusion-io Board Recommendation Change would reasonably be entitled expected to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2its fiduciary duties to Fusion-io stockholders under Delaware Law; • prior to effecting such Fusion-io Board Recommendation Change, the Fusion-io Board has given Parent at least four business days prior written notice that Fusion-io intends to take such action (a "Subsequent Determination Notice,"), which notice attaches such Superior Proposal, identities the person making such Superior Proposal, describes the terms and conditions of such Superior Proposal in reasonable detail, and provides Parent with the opportunity to meet with the Fusion-io Board and its outside legal counsel to discuss a modification of the terms and conditions of the Merger Agreement; and • Parent has not made, within four business days after its receipt of Fusion-io's Subsequent Determination Notice, an irrevocable counter-offer or proposal capable of being accepted by Fusion-io that the Fusion-io Board has determined in good faith (after consultation with a financial advisor of nationally recognized standing and its outside legal counsel) is at least as favorable to Fusion-io's stockholders as such Superior Proposal; Parent and Fusion-io have agreed that every subsequent material revision or material modification to any such Superior Proposal shall require a new Subsequent Determination Notice and a new two business day "matching" period. Nothing contained in this Section 6.2 shall prohibit Fusion-io is obligated to keep confidential any such counter-offers or proposals made by Parent to revise the Company or its board terms of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal Merger Agreement, except to the extent required to be disclosed in any SEC Reports or pursuant to applicable law or stock exchange listing requirement. In addition, the Fusion-io Board may effect a Fusion-io Board Recommendation Change at any time prior to the Acceptance Time in response to an Intervening Event (as defined below) if: • an Intervening Event has occurred; • the Fusion-io Board has determined in good faith (after consultation with outside legal counsel) that, in light of such Intervening Event, the failure by Applicable the Fusion-io Board to effect a Fusion-io Board Recommendation Change would reasonably be expected to constitute a breach of its fiduciary duties to Fusion-io's stockholders under Delaware Law.; • prior to effecting such Fusion-io Board Recommendation Change, the Fusion-io Board has given Parent at least three business days prior written notice thereof (an "Intervening Event Notice") specifying the material facts underlying the Fusion-io Board's determination that an Intervening Event has occurred and the rationale and basis for such Fusion-io Board Recommendation Change and giving Parent the opportunity to meet with Fusion-io's outside legal counsel with the purpose and intent of enabling Parent and Fusion-io to discuss in good faith a modification of the terms and conditions of the Merger Agreement so as to obviate the need to effect a Fusion-io Board Recommendation Change on the basis of such Intervening Event; and • following the expiration of such three Business Day period, the Fusion-io Board has determined in good faith (after consultation with outside legal counsel) and after giving consideration to any offer or proposal from Parent, that, in light of such Intervening Event, the failure by the Fusion-io Board to effect a Fusion-io Board Recommendation Change would reasonably be expected to constitute a breach of its fiduciary duties to Fusion-io's stockholders under Delaware law. For purposes of this Offer to Purchase:
Appears in 1 contract
Samples: Sandisk Corp
Acquisition Proposals. (a) The Company agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and the Company shall, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly initiate, solicit, knowingly encourage or facilitate (including by way of furnishing non-public information) any inquiries or the making or submission of any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate or engage in discussions 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 that has made an Acquisition Proposal or to any person Person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.25.3) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger Merger or any other transaction contemplated by this Agreement (each an “"Acquisition Agreement”"). Any violation of the foregoing restrictions by any of the Company’s 's Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors the Company Board may take any actions described in clause (ii) or (iii) of this Section 6.2(a5.3(a) with respect to a third party if at any time prior to obtaining the Effective Time Company Required Vote (xw) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not during such time period initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) ), and (yx) such proposal constitutes, or the Company’s board of directors Company Board determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal constitutes or could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, Agreement and (y) the Company shall be entitled has previously disclosed or concurrently discloses or makes available the same information, if any, to waive any “standstill” or similar provision in any Parent as it makes available to such third party and provides to Parent a copy of the Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of entered into with such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2third party. Nothing contained in this Section 6.2 5.3 shall prohibit the Company or its board of directors the Company Board from taking and disclosing to the Company’s shareholders 's stockholders a position with respect to an Acquisition Proposal 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 applicable Law.
Appears in 1 contract
Acquisition Proposals. (a) The Company agrees thatwill notify Purchaser promptly (but in no event later than 24 hours) if any proposals are received by, except as expressly contemplated by this Agreementany information is requested from, neither it nor or any of its Subsidiaries shall, and negotiations or discussions are sought to be initiated or continued with the Company shall, and shall cause or its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective executive officers, directors, investment bankers, attorneys, accountantsaccountants or other agents, financial advisorsin each case in connection with any Acquisition Proposal (as defined below). The Company shall provide such notice orally and in writing and, agents subject to the Company's directors' performance of their fiduciary duties, shall identify the person or entity making, and other representatives not to (i) directly or indirectly initiatethe terms and conditions of, solicit, knowingly encourage or facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutes, or could reasonably be expected to lead to, an such Acquisition Proposal, (ii) participate indication or engage in request. Subject to the Company's directors' performance of their fiduciary duties, the Company shall keep Parent fully informed, on a current basis, of the status and details of any such Acquisition Proposal, indication or request. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations withwith any parties conducted heretofore with respect to any Acquisition Proposal. As used in this Agreement, "Acquisition Proposal" shall mean any tender or exchange offer involving the Company, any proposal for a merger, consolidation or other business combination involving the Company, any proposal or offer to acquire in any manner a substantial equity interest in, or disclose a substantial portion of the business or assets of, the Company or any non-public information material Subsidiary (other than immaterial or data relating insubstantial assets or inventory in the ordinary course of business or assets held for sale), any proposal or offer with respect to any recapitalization or restructuring with respect to the Company or any material Subsidiary or any proposal or offer with respect to any other transaction similar to any of its Subsidiaries or afford access the foregoing with respect to the properties, books or records of the Company or any of its Subsidiaries to any Person that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to the transactions to be effected pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Law.
Appears in 1 contract
Acquisition Proposals. (a) The Company Parent agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and the Company shall, and Parent shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective Company’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not to to, (i) directly or indirectly indirectly, initiate, solicit, knowingly solicit or encourage or take any action to facilitate (including by way of furnishing non-public information) any inquiries inquiry regarding or the making or submission of any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate or engage in discussions or negotiations with, or disclose to any non-public Person (other than a party hereto or its Representatives) any information or data relating to the Company or any of its Subsidiaries the Company’s Subsidiaries, or afford access to the properties, books or records of the Company or any of its the Company’s Subsidiaries to to, or otherwise cooperate in any way with, any Person that has made an Acquisition Proposal or that the Company, any of the Company’s Subsidiaries or any of their respective Representatives knows or has reason to any person in contemplation of believe is contemplating making an Acquisition Proposal, or (iii) accept an Acquisition Proposal or enter into any agreement, arrangement or understanding, including any letter of intent, memorandum of understanding, intent or 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 Acquisition Proposal principle (other than an Acceptable Confidentiality Agreement permitted pursuant under circumstances contemplated in Section 5.2(b)), (x) providing for, constituting or relating to this Section 6.2) an Acquisition Proposal or (By) requiring, intended to causethat would require, or which could reasonably be expected to cause have the effect of causing, the Company to abandon, terminate or fail to consummate the merger Acquisition or any other transaction contemplated by this Agreement Agreement. Other than with respect to PESI, Parent shall not (each an A) waive, modify, terminate, or fail to enforce any “Acquisition Agreement”)standstill” obligation of any Person, and (B) render the restrictions, if any, under the Nevada Corporate Code relating to business combinations inapplicable to any Person. Any violation of the foregoing restrictions of this Section 5.2(a) by any of Parent, the Company’s , or any of their Subsidiaries or by any representatives Representative of Parent, the Company or any of its their Subsidiaries, whether or not such representative Representative is so authorized and whether or not such representative Representative is purporting to act on behalf of Parent, the Company or any of its their Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable LawParent.
Appears in 1 contract
Samples: Stock Purchase Agreement (Homeland Security Capital CORP)
Acquisition Proposals. During the period (athe "Pre- Closing Covenant Period") The Company agrees that, except as expressly contemplated by between the date hereof and the earliest to occur of the Closing or the termination of this Agreement, neither it nor any of the Seller will not, and will cause the Company and its Subsidiaries shallnot to, and the Company shall, and shall cause Seller will instruct its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directors, investment bankersemployees, attorneysagents, accountants, financial advisors, agents and advisors or other representatives (including those of the Company and its Subsidiaries) not to to, (i) directly or indirectly initiate, solicit, knowingly initiate or encourage any proposals or facilitate offers from any person or entity relating to, or enter into (including by way of furnishing informationor continue) any inquiries discussions concerning, any acquisition or purchase of all or a material amount of the making or submission of any proposal that constitutesassets of, or could reasonably be expected to lead toany securities of, an Acquisition Proposalor any merger, consolidation or business combination with, the Company or any Subsidiary (any such transaction, a "Competitive Transaction"), (ii) enter into any agreement regarding a Competitive Transaction, (iii) with respect to any effort or attempt by any person or entity to do or seek any of the foregoing, (a) participate or engage in any discussions or negotiations negotiations, (b) furnish to any other person or entity any confidential information with respect to the Company, any Subsidiary or the Business, or (c) otherwise cooperate in any way with, or disclose assist or participate in, or facilitate or encourage any nonsuch effort. During the Pre-public information or data relating to Closing Covenant Period, the Seller and the Company will promptly notify the Buyer in the event of any proposal or offer in respect of a Competitive Transaction. Notwithstanding the foregoing, this Section 5.7 shall not restrict or prohibit the Seller 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 that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 Acquisition Proposal Affiliates (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries) from (i) providing third parties with information regarding the Seller and its Affiliates, whether including information which may include information relating to the Company and its Subsidiaries, in the course of taking or not such representative is so authorized and whether taking any action with respect to a transaction solely relating to the Seller or not such representative is purporting to act on behalf any of its Affiliates (other than the Company or any of its Subsidiaries Subsidiaries), or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) soliciting, initiating, encouraging or considering any proposals or offers from any person or entity relating to, or entering into, (or continuing) any discussions concerning, any acquisition or purchase of this Section 6.2(a) with respect to all or a third party if at material amount of the assets of, or any time prior to securities of, or any merger, consolidation or business combination with, the Effective Time Seller or any of its Affiliates (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by other than the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable LawSubsidiaries).
Appears in 1 contract
Acquisition Proposals. (a) The Company agrees that, except Except as expressly contemplated permitted by this AgreementSection 5.2, neither it nor any of its Subsidiaries shall, and the Company shallshall not, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) not to, and shall use its reasonable best efforts to cause its and their respective directors, officers, directorsemployees, other Affiliates, investment bankers, attorneys, accountants, financial advisors, agents accountants and other advisors or representatives (collectively, “Representatives”) not to to, directly or indirectly (i) directly or indirectly initiate, solicit, solicit or knowingly facilitate or knowingly encourage any inquiries, discussions or facilitate (including by way of furnishing information) any inquiries requests with respect to or the making or submission of any proposal or offer that constitutes, constitutes or could would reasonably be expected to lead toto an Acquisition Proposal (an “Inquiry”), (ii) engage in or otherwise participate in any discussions or negotiations regarding an Acquisition Proposal or Inquiry or that would reasonably be expected to lead to an Acquisition Proposal, (ii) participate or engage in discussions provide any access to its properties, books or negotiations with, records or disclose any non-public non‑public information or data to any Person relating to the Company or any of its Subsidiaries or afford access to in connection with the propertiesforegoing, books or records of the Company or any of its Subsidiaries to any Person that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal or enter into any agreement, including any letter of intent, memorandum of understanding, agreement in principle, merger agreement, other acquisition agreement, option agreement, joint venture agreement, partnership agreement, letter of intent, term sheet, merger 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 Acquisition Proposal agreement (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2Agreement) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal (an “Alternative Acquisition Agreement”), (iv) approve, endorse, declare advisable or recommend any Acquisition Proposal, (v) take any action to make the provisions of any Takeover Statute or any restrictive provision of any applicable anti-takeover provision in the certificate of incorporation or bylaws of the Company inapplicable to any transactions contemplated by any Acquisition Proposal or (vi) authorize, commit to, agree or publicly propose to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and its and their directors, officers and employees and shall instruct its Affiliates and other Representatives to, (x) immediately cease all solicitations, discussions and negotiations with any other Persons that may be ongoing with respect to an Acquisition Proposal as of the date hereof and request that each such Person promptly return or destroy all confidential information furnished to such Person by or on behalf of the Company in connection with any such Acquisition Proposal and (y) not terminate, amend, release or modify any provision of any standstill agreement to which it or any of its Subsidiaries is a party, except that the Company may grant a limited waiver, amendment or release under any confidentiality or standstill agreement to the extent required necessary to allow for a confidential Acquisition Proposal to be made to the Company or the Company Board so long as the Company promptly (and in any event within twenty-four (24) hours thereafter) notifies Parent thereof (including the identity of such counterparty (except to the extent prohibited by Applicable Lawany Contract in effect as of the date hereof)) after granting any such limited waiver, amendment or release as provided in Section 5.2(e).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Financial Engines, Inc.)
Acquisition Proposals. (a) The Company agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, shall promptly notify Parent and the Company shallPurchaser if any proposals are received by, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly initiate, solicit, knowingly encourage or facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutesinformation is requested from, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate any negotiations or engage in discussions 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 that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed are sought to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) initiated or continued with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officersRepresentatives, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representativesin each case in connection with any Acquisition Proposal (as hereinafter defined) and (y) such proposal constitutes, or the Company’s board possibility or consideration of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an ("Acquisition Proposal Interest") indicating, in connection with such notice, the name of the Person indicating such Acquisition Proposal Interest and the material terms and conditions of any proposals or offers. The Company agrees that it shall keep Parent and the Purchaser reasonably informed, on a current basis, of the status and terms of any Acquisition Proposal Interest. As used in this Agreement, "Acquisition Proposal" means any tender or exchange offer involving the Company or any of its Subsidiaries, any proposal for a merger, consolidation or other business combination involving the Company or any of its Subsidiaries, any proposal or offer to acquire in any manner a substantial equity interest in, or a substantial portion of the business or assets of, the Company or any of its Subsidiaries (other than immaterial or insubstantial assets or inventory in the ordinary course of business or assets held for sale), any proposal or offer with respect to any recapitalization or restructuring with respect to the Company during or any of its Subsidiaries or any proposal or offer with respect to any other transaction similar to any of the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit foregoing with respect to the Company or any of its board of directors from taking and disclosing Subsidiaries other than pursuant to the Company’s shareholders a position with respect Transactions to an Acquisition Proposal be effected pursuant to the extent required by Applicable Lawthis Agreement.
Appears in 1 contract
Acquisition Proposals. (a) The Company agrees that, except Except as expressly contemplated permitted by this AgreementSection 5.2, neither it nor any of its Subsidiaries shall, and the Company shallshall not, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) not to, and shall use its reasonable best efforts to cause its and their respective directors, officers, directorsemployees, other Affiliates, investment bankers, attorneys, accountants, financial advisors, agents accountants and other advisors or representatives (collectively, “Representatives”) not to to, directly or indirectly (i) directly initiate or indirectly initiate, solicit, or knowingly encourage facilitate or facilitate (including by way of furnishing information) encourage, any inquiries inquiries, discussions or requests with respect to or the making or submission of any proposal or offer that constitutes, constitutes or could would reasonably be expected to lead toto an Acquisition Proposal (an “Inquiry”), (ii) engage in or otherwise participate in any discussions or negotiations regarding an Acquisition Proposal or Inquiry or that would reasonably be expected to lead to an Acquisition Proposal, (ii) participate or engage in discussions provide any access to its properties, books or negotiations with, records or disclose any non-public information or data to any Person relating to the Company or any of its Subsidiaries or afford access to in connection with the propertiesforegoing, books or records of the Company or any of its Subsidiaries to any Person that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal or enter into any agreement, including any letter of intent, memorandum of understanding, agreement in principle, merger agreement, other acquisition agreement, option agreement, joint venture agreement, partnership agreement, letter of intent, term sheet, merger 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 Acquisition Proposal agreement (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2Agreement) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal (an “Alternative Acquisition Agreement”), (iv) approve, endorse, declare advisable or recommend any Acquisition Proposal, (v) take any action to make the extent required provisions of any Takeover Statute or any restrictive provision of any applicable anti-takeover provision in the certificate of incorporation or bylaws of the Company inapplicable to any transactions contemplated by Applicable Lawany Acquisition Proposal or (vi) authorize, commit to, agree or publicly propose to do any of the foregoing. As of the No-Shop Period Start Date (as defined in the Original Agreement), the Company has, and has caused its Subsidiaries and its and their directors, officers and employees and has instructed its Affiliates and other Representatives to immediately cease all solicitations, discussions and negotiations with any Persons (other than Parent and its Representatives) that may be ongoing with respect to an Acquisition Proposal or Inquiry and request that each such Person (other than Parent and its Representatives) promptly return or destroy all confidential information furnished to such Person by or on behalf of the Company in connection with any such Acquisition Proposal or Inquiry.
Appears in 1 contract
Samples: And (At Home Group Inc.)
Acquisition Proposals. (a) The Company agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and the Company shallshall not, and shall cause each of its Subsidiaries Subsidiaries, and affiliates (as its and any such term in used in Rule 12b-2 under the Exchange Act) Subsidiaries' respective Representatives not to, cause their respective officersdirectly or indirectly, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly initiate, solicit, knowingly encourage or knowingly facilitate (including by way of furnishing informationinformation or assistance) any inquiries or expressions of interest or the making or submission of any proposal or offer that constitutes, or could reasonably be expected to lead toto (x) a proposal or offer with respect to a merger, an Acquisition Proposalreorganization, (ii) participate share exchange, recapitalization, liquidation, dissolution, consolidation or engage in discussions or negotiations withsimilar transaction involving, or disclose any non-public information purchase or data relating to series of related purchases directly or indirectly (including, by way of lease, exchange, sale, mortgage, pledge, tender offer, exchange offer or otherwise, as may be applicable), of 5% or more of the assets (based on fair market value) or any equity interests (in economic or voting power) in, the Company or any of its Subsidiaries Subsidiaries, (y) a breach of this Agreement or afford access to the properties, books Stockholders Agreement or records any interference with the completion of the Company Merger or (z) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of its Subsidiaries the foregoing (any of the foregoing inquiries, expressions of interest, proposals, or offers being referred to in this Agreement as an "Acquisition Proposal"), (ii) engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any Person that has made relating to an Acquisition Proposal Proposal, or otherwise facilitate the making of, or any effort or attempt to any person in contemplation of make or implement, an Acquisition Proposal, or (iii) accept agree to or recommend to its stockholders any Acquisition Proposal; provided, however, that nothing contained in this Section 5.3 shall prevent the Company from (i), based on the advice of outside legal counsel, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal or enter into providing any agreementother legally required disclosure to the stockholders of the Company (provided that, including except as otherwise permitted in this Section 5.3, the Company does not withdraw or modify, or propose to withdraw or modify, its position with respect to the Merger or approve or recommend, or propose to approve or recommend, an Acquisition Proposal), (ii) prior to receipt of the Required Company Vote, and subject to compliance by the Company with the immediately following sentence, providing information to, or engaging in any letter of intentnegotiations or discussions with, memorandum of understandingany Person who has made an unsolicited bona fide written Acquisition Proposal if, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement, arrangement or understanding, and only to the extent that (A) constituting the Board of Directors of the Company determines, in good faith after consultation with, and based upon the advice of, outside legal counsel, that providing such information and engaging in such discussions or related tonegotiations is required to comply with its fiduciary duties to the Company's stockholders under Applicable Law, or that is intended to or could reasonably be expected to lead to, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiringsuch Acquisition Proposal is not subject to any financing contingencies, intended (C) the Board of Directors determines in good faith that such Acquisition Proposal, if accepted, is reasonably likely to causebe consummated taking into account all legal, financial, regulatory and other aspects of the proposal and the Person making the proposal, and believes in good faith, after consultation with the Company Financial Advisor, would, if 48 51 consummated, result in a transaction more favorable to the Company's stockholders from a financial point of view than the Merger (any such more favorable Acquisition Proposal, a "Superior Proposal") and (D) prior to taking such action and furnishing any information to any such party, the Company (x) provides reasonable notice to the Parent to the effect that it is taking such action, (y) provides such information to the Parent (if and to the extent it has not already done so), and (z) shall have entered into a confidentiality/standstill agreement on customary terms as advised by outside legal counsel, and in any event containing terms at least as stringent as those contained in the Confidentiality Agreement, or which could reasonably be expected (iii) prior to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation receipt of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Required Company or any of its SubsidiariesVote, whether or not recommending such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything Superior Proposal to the contrary in holders of Company Common Stock and withdrawing the prior recommendation of this Agreement, if and only to the Company and its board of directors may take any actions described extent that, in each case referred to in clause (ii) or (iii) above, the Board of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) Directors of the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiateddetermines, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors with, and based upon the advice of, outside legal counsel, that taking such action is required to comply with its fiduciary duties to the Company's stockholders under Applicable Law; provided, however, the Board of Directors of the Company may not approve or recommend (and in connection therewith, withdraw or modify its approval or recommendation of this Agreement or the Merger) that an Acquisition Proposal unless such proposal could reasonably be expected to lead to, an Acquisition Proposal is a Superior Proposal, provided that Proposal (and the Company shall not deliver have first terminated this Agreement in accordance with, and complied with its obligations set forth in, Section 7.1(g) and the time period referred to in Section 7.1(g) has expired). Prior to providing any information to such third party without or entering into discussions or negotiations with any Person in connection with an Acceptable Confidentiality Agreement. Notwithstanding the foregoingAcquisition Proposal by such Person, the Company shall notify the Parent immediately (orally and in writing) if any such inquiries, proposals or offers are received by, any such information is requested from, or any such discussions or negotiations are sought to be entitled to waive initiated or continued with, any “standstill” or similar provision of its Representatives indicating, in any Acceptable Confidentiality Agreement which would preclude connection with such notice, the name of such Person from making an and the material terms and conditions of any proposals or offers and thereafter shall keep the Parent reasonably and promptly informed on the status and terms of any such proposals or offers and provide the Parent with a copy of any written Acquisition Proposal and all amendments and supplements thereto and the status of any such discussions or negotiations. The Company shall, and shall cause each of its Subsidiaries and each of the Company's and such Subsidiaries' Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted prior to the Company, provided date of this Agreement with any parties other than the Parent and the Merger Sub with respect to any of the foregoing. The Company agrees that such waiver is for it will immediately take the limited purpose of enabling such Person necessary steps to make an Acquisition Proposal inform promptly the individuals or entities referred to in the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach first sentence of this Section 6.2. Nothing contained 5.3(a) of the obligations undertaken in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Law5.3(a).
Appears in 1 contract
Samples: Agreement and Plan of Merger 2 Agreement (Schulman Robert I)
Acquisition Proposals. (a) The Company agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and the Company shall, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly initiate, solicit, knowingly encourage or facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate or engage in discussions 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 that has made an Acquisition Proposal or to any person Person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.25.3) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger Merger or any other transaction contemplated by this Agreement (each an “"Acquisition Agreement”"). Any violation of the foregoing restrictions by any of the Company’s 's Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors the Company Board may take any actions described in clause (ii) of this Section 6.2(a5.3(a) with respect to a third party if at any time prior to obtaining the Effective Time Company Required Vote (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors Company Board determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 5.3 shall prohibit the Company or its board of directors the Company Board from taking and disclosing to the Company’s shareholders 's stockholders a position with respect to an Acquisition Proposal 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 applicable Law.
Appears in 1 contract
Acquisition Proposals. (a) The Company Parent agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and the Company shall, and Parent shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective Company’s officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives (collectively, “Representatives”) not to to, (i) directly or indirectly indirectly, initiate, solicit, knowingly solicit or encourage or take any action to facilitate (including by way of furnishing non-public information) any inquiries inquiry regarding or the making or submission of any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate or engage in discussions or negotiations with, or disclose to any non-public Person (other than a party hereto or its Representatives) any information or data relating to the Company or any of its Subsidiaries the Company’s Subsidiaries, or afford access to the properties, books or records of the Company or any of its the Company’s Subsidiaries to to, or otherwise cooperate in any way with, any Person that has made an Acquisition Proposal or that the Company, any of the Company’s Subsidiaries or any of their respective Representatives knows or has reason to any person in contemplation of believe is contemplating making an Acquisition Proposal, or (iii) accept an Acquisition Proposal or enter into any agreement, arrangement or understanding, including any letter of intent, memorandum of understanding, intent or 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 Acquisition Proposal principle (other than an Acceptable Confidentiality Agreement permitted pursuant under circumstances contemplated in Section 5.2(b)), (x) providing for, constituting or relating to this Section 6.2) an Acquisition Proposal or (By) requiring, intended to causethat would require, or which could reasonably be expected to cause have the effect of causing, the Company to abandon, terminate or fail to consummate the merger Acquisition or any other transaction contemplated by this Agreement Agreement. Other than with respect to PESI, Parent shall not (each an A) waive, modify, terminate, or fail to enforce any “Acquisition Agreement”)standstill” obligation of any Person, and (B) render the restrictions, if any, under the Nevada Corporate Code relating to business combinations inapplicable to any Person. Any violation of the foregoing restrictions of this Section 5.2(a) by any of Parent, the Company’s , or any of their Subsidiaries or by any representatives Representative of Parent, the Company or any of its their Subsidiaries, whether or not such representative Representative is so authorized and whether or not such representative Representative is purporting to act on behalf of Parent, the Company or any of its their Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the CompanyParent. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Law.39
Appears in 1 contract
Samples: Stock Purchase Agreement (Perma Fix Environmental Services Inc)
Acquisition Proposals. (a) The Company agrees thatwill notify the --------------------- Purchaser immediately if any proposals are received by, except as expressly contemplated by this Agreementany information is requested from, neither it nor or any of its Subsidiaries shall, and negotiations or discussions are sought to be initiated or continued with the Company shall, and shall cause or its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directors, employees, investment bankers, attorneys, accountantsaccountants or other agents, financial advisors, agents and other representatives not to in each case in connection with any Takeover Proposal (ias defined below) directly or indirectly initiate, solicit, knowingly encourage or facilitate (including by way of furnishing information) any inquiries or the possibility or consideration of making or submission a Takeover Proposal ("Takeover Proposal Interest") indicating, in -------------------------- connection with such notice, the name of the Person indicating such Takeover Proposal Interest and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations, if any, with any parties conducted heretofore with respect to any Takeover Proposal Interest. The Company agrees that it shall keep Parent informed, on a current basis, of the status and terms of any Takeover Proposal Interest. As used in this Agreement, "Takeover -------- Proposal" -------- 47 shall mean any tender or exchange offer involving the Company, any proposal that constitutesfor a merger, consolidation or other business combination involving the Company, any proposal or offer to acquire in any manner a substantial equity interest in, or could reasonably be expected a substantial portion of the business or assets of, the Company (other than immaterial or insubstantial assets or inventory in the ordinary course of business or assets held for sale), any proposal or offer with respect to lead to, an Acquisition Proposal, (ii) participate any recapitalization or engage in discussions or negotiations with, or disclose any non-public information or data relating restructuring with respect to the Company or any proposal or offer with respect to any other transaction similar to any of its Subsidiaries or afford access the foregoing with respect to the properties, books or records of the Company or any of its Subsidiaries to any Person that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted the Xxxxxx Acquisition or pursuant to the transactions to be effected pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Law.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Bucyrus Acquisition Corp)
Acquisition Proposals. (a) The Company agrees that, except as expressly contemplated by this Agreement, neither that the Company shall not nor shall it nor authorize any of its Subsidiaries shall, and the Company shall, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisorsemployees, agents and other or representatives not to of the Company or any subsidiary (iincluding, any investment banker, attorney or accountant retained by any of the foregoing) to, initiate, continue, solicit or encourage, directly or indirectly initiateindirectly, solicit, knowingly encourage or facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutesor offer to Stockholders of the Company, with respect to a merger, consolidation or similar transaction involving, or could reasonably be expected any purchase of all or any significant portion of the assets or any equity securities of, the Company or XxxxXxxxxx.xxx (any such proposal or offer being hereinafter referred to lead to, as an "Acquisition Proposal, (ii") participate or engage in discussions or any negotiations withconcerning, or disclose provide any non-public confidential information or data to, or have any discussions with, any person 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 that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept otherwise knowingly facilitate any effort or attempt to make or implement an Acquisition Proposal or enter into any agreementagreement or understanding with any other person or entity with the intent to effect any Acquisition Proposal. The Company will notify Parent of any written Acquisition Proposals or oral Acquisition Proposals made to any officer of the Company which in either event shall include the value of the Acquisition Proposal. Promptly after the execution of this Agreement and the announcement of the Transactions, including any letter of intent, memorandum of understanding, the Company will request each person which has heretofore executed a confidentiality 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 Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation connection with its consideration of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of acquiring the Company or any of its Subsidiaries, whether portion thereof to return or not destroy all confidential information heretofore furnished to such representative is so authorized and whether person by or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or and its board Board of directors Directors from (i) taking and disclosing positions with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated by the SEC under the Exchange Act or making any disclosure required by Law to the Company’s 's stockholders as determined in good faith by the Board of Directors, taking into account the advice of legal counsel to the Company, or (ii) furnishing information, including without limitation nonpublic information, to or entering into negotiations with, any person or entity that has indicated its willingness to make an unsolicited bona fide proposal to acquire the Company pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of the assets, business combination or other similar transaction, if, and only to the extent that, (A) such unsolicited bona fide proposal relating to a Company Acquisition Proposal is made by a third party that the Board of Directors of the Company determines in good faith has a good faith intention to proceed with negotiations to consider, and financial capability to consummate, such Company Acquisition Proposal, such Company Acquisition Proposal is to acquire at least (a) 50% of the consolidated assets or outstanding voting power of the Company's securities, or (b) all of the outstanding securities or assets of Aunt Xxxxxx.xxx and is financially superior to the Transactions to the shareholders of the Company, as determined in good faith in each case by the Company's Board of Directors taking into account the advice of its financial advisors and legal counsel (a position "Superior Proposal"), (B) the Board of Directors of Company, after duly considering the advice of legal counsel to Company, determines in good faith that such action is required for the Board of Directors of Company to comply with its fiduciary duties to stockholders imposed by applicable law, (C) contemporaneous with furnishing such information to, or entering into discussion or negotiations with, such person or entity Company provides written notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity and (D) Company uses all reasonable efforts to keep Parent informed in all material respect of the status and terms of any such negotiations or discussions (including without limitation the identity of the person or entity with whom such negotiations or discussions are being held) and provides Parent copies of such written proposal and any amendments or revisions thereto or correspondence related thereto; provided, that Parent agrees to execute a confidentiality agreement, in form reasonably acceptable to Parent, with respect to an Acquisition Proposal any such information delivered to the extent required by Applicable LawParent pursuant to this clause (D), which confidentiality agreement shall be subject to Parent's disclosure obligations arising under applicable law or securities exchange regulations.
Appears in 1 contract
Acquisition Proposals. (a) The From the date hereof until the earlier to occur of the Closing Date or termination of this Agreement pursuant to Section 9.01 hereof, the Company agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and the Company shallPrincipal Shareholders shall not, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, each cause their respective officersAffiliates not to, directorsdirectly or indirectly, through any equity holder, officer, director, trustee, agent or otherwise (i) solicit, initiate or encourage the submission of inquiries, proposals or offers from any Person other than Purchaser, its Affiliates or representatives relating in any way to any investment bankersin the Company or any Company Subsidiary, attorneysany acquisition of direct or indirect control of the Company or any Company Subsidiary, accountantsthe purchase of any of the Company's or any Company Subsidiary's securities, any significant amount of assets or businesses, any lease, exchange, mortgage, pledge, transfer or other disposition of any significant amount of the assets of the Company or any Company Subsidiary, or any business combination or other transaction involving the Company or any Company Subsidiary, including without limitation, any merger, consolidation, acquisition, tender or exchange offer purchase, re capitalization, reorganization, dissolution, liquidation, or issuance or disposition of any nature or other transaction which would involve the Company or any Company Subsidiary or any other of the entities or assets expected to be involved in the Merger or which would have a similar financial advisorsresult as the Merger (each, an "Acquisition Proposal"), (ii) participate in any discussions or negotiations regarding an Acquisition Proposal or furnish to any Person any information for any purpose inconsistent with the foregoing, (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 or (iv) formulate or disclose any intention, plan or arrangement inconsistent with the foregoing. The Company and the Principal Shareholders shall immediately cease and cause to be terminated any existing activities, discussions or negotiations with any Person conducted heretofore with respect to any Acquisition Proposal, and shall use commercially reasonable efforts to cause its employees, agents and other representatives not to of obligations undertaken in this Section 5.07. The Company and the Principal Shareholders will (i) directly immediately notify Purchaser orally and in writing if any discussions or indirectly initiatenegotiations are sought to be initiated, solicit, knowingly encourage any inquiry or facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutesis made, or any information is requested by any Person with respect to any Acquisition Proposal or proposal which could reasonably be expected lead to lead to, an Acquisition Proposal, (ii) participate immediately notify Purchaser of all material terms of any Acquisition Proposal including the identity of the Person making the Acquisition Proposal or engage the request for information, and (iii) in discussions the event a third party makes a written offer or negotiations with, or disclose any non-public information or data relating proposal to the Company or any of its Subsidiaries or afford access the Principal Shareholders with respect to the propertiesany Acquisition Proposal, books or records of the Company or a Principal Shareholder, as the case may be, will promptly send to Purchaser a copy of any of such written offer or proposal. The Company shall, and will use commercially reasonable efforts to ensure that its Subsidiaries to any Person that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, employees, investment bankers, attorneys, accountantsaccountants and other agents, financial advisors, agents or other representatives) immediately cease and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors cause to be terminated all discussions and outside legal counsel) negotiations that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal have taken place prior to the Companydate hereof, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreementif any, and with any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position Persons with respect to an any Acquisition Proposal to the extent required by Applicable LawProposal.
Appears in 1 contract
Acquisition Proposals. (a) The Company agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and the Company shallSellers shall not, and shall cause its their Subsidiaries and affiliates each of their respective directors, officers, employees, agents, consultants, advisors or other representatives, including legal counsel and accountants (as such term in used in Rule 12b-2 under the Exchange Actcollectively, “Representatives”) not to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly indirectly, (x) solicit, initiate, solicit, knowingly encourage or knowingly facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutes, or could may reasonably be expected to lead to, an Acquisition ProposalProposal (as defined below), (iiy) participate or engage in discussions or negotiations with, or disclose any non-non public information or data relating to the Shares, the Company or its Subsidiaries or any of its Subsidiaries or afford access to the properties, books or records of the Company or any of its Subsidiaries Contracts to any Person that has made an Acquisition Proposal or to any person Person in contemplation of an Acquisition Proposal, or (iiiz) accept an Acquisition Proposal or enter into any agreement, including any letter of intent, memorandum of understanding, agreement or agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership principle providing for or relating to an Acquisition Proposal or enter into any agreement or other similar agreement, arrangement or understanding, (A) constituting or related agreement in principle requiring the Sellers to, or which contemplates that is intended to or could reasonably be expected to lead tothe Sellers shall, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger transactions contemplated hereby. Concurrently with execution of this Agreement, the Sellers shall, and shall cause their respective Representatives to, immediately cease any existing discussions or negotiations, if any, with any Persons conducted heretofore with respect to any Acquisition Proposal and request the return or destruction of any confidential information concerning the Company and it Subsidiaries that has been provided to any such Person in connection therewith. The Sellers shall notify the Purchaser (and provide all details reasonably requested by the Purchaser) promptly, but in any event within seventy-two (72) hours, if the Sellers or any other transaction contemplated by of their affiliates receives any Acquisition Proposal. For the purposes of this Agreement (each an Agreement, “Acquisition Agreement”). Any violation of Proposal” shall mean any inquiry, proposal or offer from any Person (other than the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company Purchaser or any of its Subsidiariesaffiliates) concerning any sale, whether transfer, lease, assignment, pledge, hypothecation or not such representative is so authorized and whether other disposition of any or not such representative is purporting to act on behalf all of the Company Shares or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents other capital stock or other representatives) and (y) such proposal constitutes, or the Company’s board equity interests of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose including any single or multi-step transaction or series of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Lawrelated transactions.
Appears in 1 contract
Samples: Stock Purchase Agreement (Vesta Insurance Group Inc)
Acquisition Proposals. (a) The a)The Company agrees that, except as expressly contemplated by this Agreement, neither that (i) it nor any of and its Subsidiaries shall, and the Company shall, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directorsdirectors and employees shall not, investment bankers(ii) its subsidiaries and its subsidiaries' officers, attorneysdirectors and employees shall not and (iii) it shall use its best efforts to ensure that its and its subsidiaries' accountants, accountantsconsultants, financial advisors, agents attorneys, employees and other agents, advisors and representatives not to (i"Representatives") shall not, (A) directly or indirectly indirectly, initiate, solicit, solicit or knowingly encourage or facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutesor offer with respect to a tender offer or exchange offer, proposal for a merger, consolidation or other business combination involving the Company and its subsidiaries or any proposal or offer to acquire in any manner an equity interest representing a 20% or greater economic or voting interest in the Company, or could reasonably be expected the assets, securities or other ownership interests of or in the Company or any of its subsidiaries representing 20% or more of the consolidated assets of the Company and its subsidiaries, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to lead as an "Acquisition Proposal"), (B) directly or indirectly, engage 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, an Acquisition Proposal, (iiC) participate or engage in discussions or negotiations with, or disclose take any non-public information or data relating action to render the Company or any of its Subsidiaries or afford access Rights inapplicable to the properties, books or records of the Company or any of its Subsidiaries to any Person that has made an Acquisition Proposal or to the transactions contemplated thereby, exempt or exclude any person from the applicability of the Company Rights in contemplation of an Acquisition Proposal, or (iii) accept an connection with any Acquisition Proposal or enter into any agreementtransactions contemplated thereby (provided that nothing herein shall prevent the Company's Board of Directors from taking the action set forth in the first parenthetical in clause (ii) of Section 3(a) of the Rights Plan) or, 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 Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction as contemplated by this Agreement (each an “Acquisition Agreement”). Any violation in connection with the Merger, allow the Company Rights to expire prior to their expiration date, or take any action to exempt any person from the restrictions on "business combinations" contained in Section 203 of the foregoing DGCL or otherwise cause such restrictions by not to apply or (D) waive, terminate, modify or fail to enforce any provision of any contractual "standstill" or similar obligation of any person other than Parent or its affiliates unless the Company’s Subsidiaries or by any representatives Board of Directors of the Company shall have determined in good faith, after consultation with its outside legal counsel, that such waiver, termination, modification or any failure to enforce is required in order for the Board of Directors to comply with its Subsidiariesfiduciary duties under applicable Law. Notwithstanding the foregoing, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of nothing contained in this Agreement shall prevent the Company or its Board of Directors from (i) taking and disclosing to its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act (or any similar communication to stockholders in connection with the making or amendment of a tender offer or exchange offer) or from making any legally required disclosure to stockholders with regard to an Acquisition Proposal (provided that neither the Company nor its Board of Directors may recommend any Acquisition Proposal unless permitted by Section 6.5(b) and the Company may not fail to make or withdraw, modify or change in a manner adverse to Parent, all or any portion of its Subsidiaries recommendation of this Agreement or otherwisethe Merger unless permitted by Section 6.1(a)), shall be deemed (ii) prior to be a breach the adoption of this Agreement by the Company. Notwithstanding anything 's stockholders in accordance with this Agreement, providing access to its properties, books and records and providing information or data (provided that such access, information or data also is given to Parent to the contrary extent not previously given to Parent) in response to a request therefor by a person who has made an unsolicited bona fide written Acquisition Proposal not in violation of the immediately preceding sentence if the Board of Directors receives from the person so requesting such information an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreements (except for such changes specifically necessary in order for the Company to be able to comply with its obligations under this Agreement) or (iii) prior to the adoption of this Agreement by the Company's stockholders in accordance with this Agreement, engaging in any negotiations or discussions with any person who has made an unsolicited bona fide written Acquisition Proposal not in violation of the immediately preceding sentence; if and only to the extent that in connection with the foregoing clauses (ii) and (iii), the Board of Directors of the Company shall have determined in good faith, after consultation with its outside legal counsel and financial advisors that, such action is required in order for the Board of Directors of the Company to comply with its fiduciary duties under applicable Law and that such Acquisition Proposal will result in, or would reasonably be expected to result in, a Superior Proposal. A "Superior Proposal" means an Acquisition Proposal for more than 50% of the equity interest in, or more than 50% of the consolidated assets of, the Company and its subsidiaries that, if accepted, is reasonably capable of being consummated, taking into account legal, financial, regulatory, timing and similar aspects of the proposal and the person making the proposal and would, if consummated, result in a transaction more favorable to the Company's stockholders from a financial point of view than the transaction contemplated by this Agreement. The Company and its subsidiaries will and will cause their respective 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. The Company shall also promptly (and in any event within 48 hours) notify Parent of the receipt of each Acquisition Proposal after the date hereof, which notice shall include the identity of the person making such Acquisition Proposal and set forth in reasonable detail its material terms and conditions (including without limitation information relating to the financing thereof), and thereafter shall keep Parent reasonably informed of the status and material terms and conditions of such Acquisition Proposal and provide a copy of all written materials provided to or by the Company in connection with such Acquisition Proposal. Except as otherwise permitted by this Agreement, the Company and its board of directors may take subsidiaries shall not enter into any actions described in clause (ii) of Contract that is inconsistent with their respective obligations under this Section 6.2(a6.5. (b) with respect Notwithstanding anything in this Section 6.5 to a third party if the contrary, if, at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated adoption of this Agreement by the Company or any of its Subsidiaries or any of their respective officersCompany's stockholders in accordance with this Agreement, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board 's Board of directors Directors determines in good faith (faith, after consultation with its financial advisors and outside legal counsel, in response to a bona fide written Acquisition Proposal that was unsolicited and that did not otherwise result from a breach of Section 6.5(a) in any material respect, that such proposal could reasonably be expected to lead to, is a Superior Proposal, provided (i) the Company may terminate this Agreement, (ii) its Board of Directors may approve or recommend such Superior Proposal to its stockholders, and/or (iii) immediately prior to or concurrently with the termination of this Agreement, enter into any agreement, understanding, letter of intent or arrangement with respect to such Superior Proposal; provided, however, that the Company shall not deliver terminate this Agreement or approve or recommend such Superior Proposal pursuant to this sentence, and any purported termination or approval pursuant to this sentence shall be void and of no force or effect, unless the Company prior to or concurrently with such action pursuant to this Section 6.5(b) pays to Parent the fee payable pursuant to Section 8.2(c); and provided, further, however, that the Company shall not exercise its right to terminate this Agreement pursuant to this Section 6.5(b) and its Board of Directors may not approve or recommend any Superior Proposal unless (A) the Company has provided a written notice to Parent (a "Notice of Superior Proposal") advising Parent that the Company has received a Superior Proposal and including all information required by the penultimate sentence of Section 6.5(a) (it being understood that neither the delivery of a Notice of a Superior Proposal nor any subsequent public announcement thereof in itself shall entitle Parent to terminate this Agreement pursuant to Section 8.1(e)), and (B) Parent does not, within three business days following its receipt of the Notice of Superior Proposal, make an offer that, as determined by the Board of Directors of the Company in good faith after consultation with its outside legal counsel and financial advisors, results in the applicable Acquisition Proposal no longer being a Superior Proposal (provided that, during such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoingthree business day period, the Company shall be entitled to waive any “standstill” or similar provision negotiate in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Companygood faith with Parent, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Law.Parent wishes to negotiate, to enable Parent to make such offer). SECTION 6.6
Appears in 1 contract
Samples: Agreement and Plan of Merger (Neiman Marcus Group Inc)
Acquisition Proposals. (a) The Company agrees thatIn the case of the Company, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shallshall not, and it shall cause the Company shallSubsidiaries, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) todirectors, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly initiate, solicit, knowingly encourage or facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate or engage in discussions 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 employees of the Company or any of its Subsidiaries to any Person that has made an Acquisition Proposal or to any person in contemplation of an Acquisition ProposalCompany Subsidiaries, or (iii) accept an Acquisition Proposal or enter into any agreementof their respective attorneys, including any letter of intentbankers, memorandum of understandingaccountants, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement agents or other similar agreementadvisors (collectively, arrangement the "Company Representatives") not to, solicit or understanding, (A) constituting encourage inquires or related proposals with respect to, or that is intended furnish any nonpublic information relating to or could reasonably be expected to lead toparticipate in any negotiations or discussions concerning, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) acquisition or (B) requiring, intended to cause, purchase of all or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation a substantial portion of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives assets of the Company or any of its Subsidiaries, whether the Company Subsidiaries or not such representative is so authorized and whether any merger or not such representative is purporting to act on behalf of other business combination with the Company or any of its the Company Subsidiaries other than as contemplated by the Plan; and the Company shall notify Purchaser immediately if and the terms of any such inquiries or otherwiseproposals are received by, shall be deemed or any such negotiations or discussions are sought to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreementinitiated with, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries the Company Subsidiaries. All pending negotiations or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) discussions by Company Representatives have been terminated and (y) such proposal constitutes, the Company's confidential information has been destroyed and returned as provided in the applicable confidentiality agreement. Nothing in the Plan will prevent the Company or the Company’s board Company Board from: (i) providing information in response to a request therefore by a person who has made an unsolicited bona fide written proposal for an acquisition or purchase of directors the type described in the preceding sentence; or (ii) engaging in any negotiations or discussions with any person who has made such an unsolicited bona fide written proposal, if and only to the extent that, in each such case referred to in clause (i) or (ii), the Company Board determines in good faith (after consultation with its financial advisors and outside legal counseladvisors) that the proposal could reasonably result in a transaction more favorable to the holders of shares, as a group in their capacity as shareholders of Company Common Stock, from a financial point of view than the Merger or if counsel to the Company advises the Company Board of Directors that the failure to furnish information, negotiate or enter into appropriate agreements with such proposal person could reasonably be expected to lead tosubject the Company's directors to liability for breach of their fiduciary duties or for failure to conform to the requirements of the securities laws, a Superior Proposal, provided that in each case subject to the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreementprovisions of ARTICLE VII. Notwithstanding If negotiations or discussions are initiated in accordance with the foregoingpreceding sentence, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided agrees that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Lawit will notify Purchaser immediately.
Appears in 1 contract
Acquisition Proposals. (a) The No Company agrees thatEntity shall, except as expressly contemplated by this Agreement, neither nor shall it nor authorize or permit any of its Subsidiaries shall, and the Company shall, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) Affiliates or Representatives to, cause their respective officersdirectly or indirectly, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly solicit, initiate, solicitencourage, knowingly encourage induce or facilitate (including by way of furnishing information) any inquiries the making, submission or the making or submission announcement of any proposal Acquisition Proposal or take any action that constitutes, or could reasonably be expected to lead to, to an Acquisition Proposal, (ii) participate or engage in any discussions or negotiations withregarding, 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 furnish to any Person that has made an Acquisition Proposal or to “Group” (as such term is defined in Section 13(d) under the Exchange Act) any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that is intended to constitutes (or could may reasonably be expected to lead to) an Acquisition Proposal, (iii) subject to Section 8.1(c), approve, endorse or recommend any Acquisition Proposal, or (iv) enter into any Acquisition Agreement contemplating or otherwise relating to any Acquisition Transaction; provided, however, that, prior to the Company Stockholder Approval, this Section 8.2(a) shall not prohibit Company from furnishing nonpublic information regarding any Company Entity to, or entering into a confidentiality agreement or discussions or negotiations with, any Person or Group in response to a bona fide unsolicited written Acquisition Proposal submitted by such Person or Group (other than an Acceptable Confidentiality Agreement permitted pursuant to and not withdrawn), but only if (A) no Company Entity or Representative or Affiliate thereof shall have violated any of the restrictions set forth in this Section 6.2) or 8.2; (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives Board of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors Directors determines in good faith (after consultation with its financial advisors based upon the advice of the Company Financial Advisor and the Company’s outside legal counsel) that such proposal could Acquisition Proposal is, or is reasonably be expected likely to lead toresult in, a Superior Proposal, provided Proposal and that the failure to take such actions would be inconsistent with its fiduciary duties to Company’s stockholders under applicable Laws; (C) at least three (3) business days prior to furnishing any such nonpublic information to, or entering into discussions or negotiations with, such Person or Group, Company shall not deliver gives Parent written notice of the identity of such Person or Group and of Company’s intention to furnish nonpublic information to, or enter into discussions or negotiations with, such Person or Group; (D) Company receives from such Person or Group an executed confidentiality agreement containing customary limitations on the use and disclosure of all nonpublic information furnished to such Person or Group by or on behalf of Company and in any event is no less favorable to the Company than the Confidentiality Agreement, dated September 1, 2006, between Company and Parent (the “Confidentiality Agreement”); and (E) at or prior to the time of furnishing such nonpublic information to such third party without entering into an Acceptable Confidentiality AgreementPerson or Group, Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by Company to Parent). Notwithstanding In addition to the foregoing, the Company shall be entitled provide Parent with at least two (2) business days prior written notice of any meeting of Company’s Board of Directors at which meeting the Board of Directors is reasonably expected to waive any “standstill” consider a Superior Proposal or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition resolve to recommend a Superior Proposal to its stockholders and together with such notice a copy of the Companymost recently proposed documentation relating to such Superior Proposal; provided, provided further, that such waiver is for the limited purpose of enabling such Person Company hereby agrees promptly to make an Acquisition Proposal provide to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, Parent any revised documentation and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an related Acquisition Proposal to the extent required by Applicable LawAgreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Back Yard Burgers Inc)
Acquisition Proposals. (a) The Company agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and the Company shallSellers shall not, and shall cause its their Subsidiaries and affiliates each of their respective directors, officers, employees, agents, consultants, advisors or other representatives, including legal counsel and accountants (as such term in used in Rule 12b-2 under the Exchange Actcollectively, "Representatives") not to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly indirectly, (x) solicit, initiate, solicit, knowingly encourage or knowingly facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutes, or could may reasonably be expected to lead to, an Acquisition ProposalProposal (as defined below), (iiy) participate or engage in discussions or negotiations with, or disclose any non-non public information or data relating to the Shares, the Company or its Subsidiaries or any of its Subsidiaries or afford access to the properties, books or records of the Company or any of its Subsidiaries Contracts to any Person that has made an Acquisition Proposal or to any person Person in contemplation of an Acquisition Proposal, or (iiiz) accept an Acquisition Proposal or enter into any agreement, including any letter of intent, memorandum of understanding, agreement or agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership principle providing for or relating to an Acquisition Proposal or enter into any agreement or other similar agreement, arrangement or understanding, (A) constituting or related agreement in principle requiring the Sellers to, or which contemplates that is intended to or could reasonably be expected to lead tothe Sellers shall, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger transactions contemplated hereby. Concurrently with execution of this Agreement, the Sellers shall, and shall cause their respective Representatives to, immediately cease any existing discussions or negotiations, if any, with any Persons conducted heretofore with respect to any Acquisition Proposal and request the return or destruction of any confidential information concerning the Company and it Subsidiaries that has been provided to any such Person in connection therewith. The Sellers shall notify the Purchaser (and provide all details reasonably requested by the Purchaser) promptly, but in any event within seventy-two (72), if the Sellers or any of their affiliates receives any Acquisition Proposal. For the purposes of this Agreement, "Acquisition Proposal" shall mean any inquiry, proposal or offer from any Person (other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of than the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company Purchaser or any of its Subsidiariesaffiliates) concerning any sale, whether transfer, lease, assignment, pledge, hypothecation or not such representative is so authorized and whether other disposition of any or not such representative is purporting to act on behalf all of the Company Shares or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents other capital stock or other representatives) and (y) such proposal constitutes, or the Company’s board equity interests of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose including any single or multi-step transaction or series of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Lawrelated transactions.
Appears in 1 contract
Samples: Stock Purchase Agreement (Affirmative Investment LLC)
Acquisition Proposals. (a) The From the date hereof until the termination hereof, the Company agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and the Company shallSubsidiaries will not, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, will cause their respective officers, directors, employees or other agents (including, without limitation, investment bankers, attorneysattorneys or accountants) not to, accountantsdirectly or indirectly, financial advisors, agents and other representatives not to (i) directly or indirectly take any action to solicit, initiate, solicitencourage, knowingly encourage enter into any agreement or otherwise facilitate (including by way any offer or proposal for, or any indication of furnishing information) any inquiries interest in, a merger or other business combination involving Company or the making or submission acquisition of any proposal that constitutesequity interest in, or could reasonably be expected a substantial portion of the assets of Company, other than the transactions contemplated by the Transaction Documents and other than the sale of the hospital in Kirkland, Washington and the sale of real estate and buildings relating to lead to, hospitals formerly operated by Company or a Company Subsidiary (an "Acquisition Proposal"), or (ii) participate or engage in or continue discussions or negotiations with, or disclose any non-public nonpublic information or data relating to Company or the Company or any of its Subsidiaries Subsidiaries, respectively, or afford access to the their respective properties, books or records of the Company or any of its Subsidiaries to any Person that has made an Acquisition Proposal or to to, any person in contemplation of that may be considering making, or has made, an Acquisition Proposal, or (iii) accept otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal 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 Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing nothing contained in this Section 6.2 7.2 shall prohibit the Company or and its board Board of directors Directors from (i) taking and disclosing to the Company’s shareholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) promulgated by the SEC under the Exchange Act, or (ii) furnishing information to, or entering into negotiations with, any person or entity that makes an Acquisition Proposal unsolicited bona fide proposal to acquire Company pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of the assets, business combination or other similar transaction, if, and only to the extent that, (i) such Board of Directors determines in good faith upon advice of counsel that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by Applicable Lawlaw, and (ii) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, Company provides written notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and Company keeps Parent informed of the status and principal financial terms of any such negotiations or discussions.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Transitional Hospitals Corp)
Acquisition Proposals. (a) The Company agrees thatNone of the Shareholders shall take, except as expressly contemplated or authorize or permit any investment banker, financial advisor, attorney, accountant or other Person retained by this Agreementor acting for or on behalf of the Shareholders to take, neither it nor directly or indirectly, any action to initiate, assist, solicit, negotiate, or encourage any offer, inquiry or proposal from any Person other than HMAUF: (i) relating to the acquisition of any capital stock or other voting securities of Honesty Group or any of its Subsidiaries shall, and the Company shall, and shall cause or any assets of Honesty Group or any of its Subsidiaries and affiliates other than sales of assets in the ordinary course of business whether such acquisition is structured as a merger, consolidation, share exchange or other business combination (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly initiate, solicit, knowingly encourage or facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutes, or could reasonably be expected to lead to, an “Acquisition Proposal, ”); (ii) to reach any agreement or understanding (whether or not such agreement or understanding is absolute, revocable, contingent or conditional) for, or otherwise attempt to consummate, any Acquisition Proposal; (iii) to participate or engage in discussions or negotiations with, with or disclose to furnish or cause to be furnished any material non-public information or data relating with respect to the Company Shareholders, Honesty Group or any of its Subsidiaries or afford access to the properties, assets and properties or books or and records of the Company Honesty Group or any of its Subsidiaries to any Person, except as provided in Section 6.1, who any of the Shareholders or any such Person that acting for or on their behalf knows or has made an Acquisition Proposal or reason to any person believe is in contemplation the process of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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, considering any Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant relating to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company Honesty Group or any of its Subsidiaries; (iv) to participate in any discussions or negotiations regarding, whether furnish any material non-public information with respect to, assist or not such representative is so authorized and whether participate in, or not such representative is purporting facilitate in any other manner any effort or attempt by any Person to act on behalf of the Company do or seek any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, or (v) to take any other action that is inconsistent with the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to Transactions and that has the Company, provided that such waiver is for effect of avoiding the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable LawClosing contemplated hereby.
Appears in 1 contract
Samples: Share Exchange Agreement (Hambrecht Asia Acquisition Corp.)
Acquisition Proposals. (a) The Except as expressly permitted by this Section 6.12, the Company agrees thatthat it will not, except as expressly contemplated by this Agreement, neither it nor any and will cause each of its Subsidiaries shall, and the Company shall, its and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directorsdirectors and employees, and will use its reasonable best efforts to cause its and their respective agents, advisors, financing sources, investment bankers, attorneys, accountants, financial advisors, agents attorneys and other representatives (collectively with officers, directors and employees, “Representatives”), not to to, directly or indirectly, (i) directly or indirectly initiate, solicit, knowingly encourage or knowingly facilitate (including by way of furnishing information) any inquiries or proposals regarding, or the making or submission of any proposal or offer that constitutes, or could reasonably be expected to lead to, an any Acquisition Proposal, (ii) engage or participate or engage in any discussions or negotiations withwith any person concerning any Acquisition Proposal, (iii) disclose or disclose provide any non-public confidential or nonpublic information or data relating to the Company to, or otherwise cooperate in any of its Subsidiaries or afford way with, any person in connection with any Acquisition Proposal (including by affording access to the personnel, properties, books books, records or records assets of the Company or any of its Subsidiaries to any Person that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, Subsidiaries) or (iiiiv) accept an Acquisition Proposal or unless this Agreement has been terminated in accordance with its terms, enter into any agreementterm sheet, including any letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreementagreement (whether written or oral, arrangement binding or understanding, nonbinding) (Aother than a confidentiality agreement referred to and entered into in accordance with this Section 6.12(a)) constituting or related to, or that is intended relating to or could reasonably be expected to lead to, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiringprovided, intended to causehowever, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of that the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of shall not prevent the Company or its Representatives from contacting any person who has made an Acquisition Proposal or inquiry or proposal relating thereto solely for the purpose of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf seeking clarification of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Companyterms and conditions thereof). Notwithstanding anything to the contrary in this Agreementforegoing, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time receipt of the Requisite Company Vote, in the event the Company receives an unsolicited bona fide written Acquisition Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, (x) furnish or cause to be furnished confidential or nonpublic information or data to, (y) participate in negotiations or discussions with and (z) afford access to its and their personnel, properties, books, records and assets to the Company receives a written person making the Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any person’s Representatives) if and only if its Board of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines Directors concludes in good faith (after consultation with its outside counsel, and with respect to financial advisors and outside legal counselmatters, its financial advisors) that failure to take such proposal could reasonably actions would be expected more likely than not to lead toresult in a violation of its fiduciary duties under applicable law; provided, a Superior Proposalfurther, that prior to providing any confidential or nonpublic information permitted to be provided that pursuant to the Company shall not deliver any information to foregoing proviso affording such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoingaccess or participating in such negotiations or discussions, the Company shall be entitled have given Parent at least twenty-four (24) hours’ prior written notice and shall have entered into a confidentiality agreement with such third party on terms no less favorable to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to it than the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver which confidentiality agreement shall not constitute a breach provide such person with any exclusive right to negotiate with the Company. The Company will, and will cause its Representatives to, immediately cease and cause to be terminated any activities, discussions or negotiations conducted before the date of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position Agreement with any person other than Parent with respect to an any Acquisition Proposal and will request pursuant to the extent required by Applicable Law.any applicable
Appears in 1 contract
Samples: Agreement and Plan of Merger (First Interstate Bancsystem Inc)
Acquisition Proposals. (a) The Company Until this Agreement has been terminated in accordance with Section 6.1 (and the payments, if any, required to be made in connection with such termination pursuant to Section 6.2 have been made), each Party agrees that, except as expressly contemplated by this Agreement, neither that it nor any of its Subsidiaries shallwill not, and the Company shall, and shall will cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) its and their Representatives not to, cause their respective officersdirectly or indirectly, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly initiate, solicit, knowingly encourage or facilitate (including by way of furnishing or disclosing information) ), solicit, initiate, make or facilitate the making of, or take any other action to facilitate any inquiries or the making or submission of any proposal that constitutes, constitutes or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate or engage in discussions 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 that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 may reasonably be expected to lead to, any Acquisition Proposal Proposal, (ii) knowingly participate in any way in discussions or negotiations with, or furnish or disclose any information to, any Person (other than an Acceptable Confidentiality Agreement permitted pursuant the other Party or any of its Subsidiaries) in connection with any Acquisition Proposal, (iii) release or permit the release of any Person from, or waive or permit the waiver of any provisions of, or otherwise fail to this Section 6.2exercise its rights under, any confidentiality, standstill or similar agreement to which such Party is a party or under which such Party has any rights with respect to the divestiture of the voting securities or any material portion of the assets of such Party (except for any such agreement with the other Party or any of its Subsidiaries), (iv) in the case of Company, waive application of the Company Rights Plan, it being understood that the Company Rights Plan may terminate in accordance with the terms of the Company Rights Plan prior to the Effective Time, (v) effect a Change in Recommendation, (vi) approve or recommend, or propose to approve or recommend, any Acquisition Proposal or (Bvii) requiringenter into any agreement, intended letter of intent, agreement-in-principle, acquisition agreement or other instrument contemplating or otherwise relating to cause, any Acquisition Proposal or which could reasonably be expected to cause the Company requiring such Party to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of transactions contemplated hereby, including the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the CompanyArrangement. Notwithstanding anything to the contrary in this Agreementforegoing, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) procurement of the Company receives a written Acquisition Proposal from Requisite Shareholder Vote in the case of Company and of the Acquiror Requisite Shareholder Vote in the case of Acquiror, such third party Party (the “Acting Party”) may (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of may permit its Subsidiaries or any of and its and their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead Representatives to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Law.):
Appears in 1 contract
Acquisition Proposals. (a) The Company agrees thatFrom the date of this Agreement until the earlier to occur of the Closing or the termination of this Agreement in accordance with its terms, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and the Company shallshall not, and shall cause its Subsidiaries, and its and its Subsidiaries’ officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under collectively, the Exchange Act“Representatives”) not to, cause their respective officersdirectly or indirectly, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly solicit, initiate, solicitinduce or knowingly encourage, or knowingly encourage or facilitate (including by way of furnishing information) take any inquiries other action to facilitate, any inquiries, offers discussions or the making or submission of any proposal that constitutes, constitutes or could reasonably be expected to lead to, to an Acquisition Proposal, (ii) participate furnish any confidential or engage in discussions or negotiations with, or disclose any non-public information or data relating to regarding the Company or any of its Subsidiaries or afford access to the properties, books any such information or records of the Company or any of its Subsidiaries data to any Person that has made in connection with or in response to an Acquisition Proposal or to any person in contemplation an inquiry or indication of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 interest that is intended to or could reasonably be expected to lead toto an Acquisition Proposal, (iii) continue or otherwise participate in any discussions or negotiations, or otherwise communicate in any way with any Person (other than Purchaser), regarding an Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal, (v) release any Person from, waive any provisions of, or fail to use its reasonable best efforts to enforce any confidentiality agreement or standstill agreement to which the Company is a party or (vi) enter into or consummate any agreement, agreement in principle, letter of intent, arrangement or understanding contemplating any Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause requiring the Company to abandon, terminate or fail to consummate the merger or transactions contemplated hereby. Without limiting the foregoing, it is understood that any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions set forth in the preceding sentence by any of the Company’s Subsidiaries officer, director or by any representatives employee of the Company or any of its Subsidiariesthe Subsidiaries or any investment banker, whether financial advisor, attorney, accountant or not such other representative is so authorized and whether or not such representative is purporting to act on behalf of retained by the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement Section 5.1 by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, before the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, adoption and any such waiver shall not constitute a breach approval of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to Agreement by the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Law.of Company Common Stock and Company Preferred Stock at the
Appears in 1 contract
Samples: Agreement and Plan of Merger (First Community Bankshares Inc /Va/)
Acquisition Proposals. (a) The Subject to Section 6.3(b), the Company agrees thatwill not (and will not resolve or publicly propose to), except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shalldirectly or indirectly, and the Company shall, and shall will cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause its and their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives Representatives not to (and not to resolve or publicly propose to), directly or indirectly, from the date hereof until the Purchase Time: (i) directly or indirectly initiate, solicitsolicit or knowingly encourage or otherwise knowingly facilitate the submission of any inquiries, proposals or offers that constitute an, or are reasonably likely to result in the making, submission or announcement of any, Acquisition Proposal; (ii) initiate, participate in, knowingly encourage or otherwise knowingly facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate or engage in discussions or negotiations withregarding, or disclose furnish to any Person (other than Parent and its Affiliates) any non-public information with respect to, assist or data relating participate in any effort or attempt by any Person with respect to, or otherwise cooperate in any way with respect to, any such inquiries, proposals or offers; (iii)(A) withdraw, modify or qualify in a manner adverse to Parent or Purchaser, or publicly propose to withdraw or to modify or qualify in a manner adverse to Parent or Purchaser, the Company Board Recommendation (it being understood that the Company Board Recommendation shall be deemed to have been modified or qualified in a manner adverse to Parent and Purchaser if the Company Board Recommendation ceases to remain unanimous and either: (I) following such cessation, the Minimum Tender Condition is not satisfied; or (II) (1) any director who ceases to support the Offer or the Merger also voices opposition to the Offer and the Merger and such opposition is disclosed publicly or to any stockholder of the Company that is not also a director or officer of the Company and (2) such opposition is reasonably expected to adversely effect the likelihood of consummation of the Offer or the Merger) or (B) recommend the approval or adoption of, or accept, approve or adopt, or publicly propose to recommend, accept, approve or adopt, any Acquisition Proposal, or resolve, agree or publicly propose to take any of its Subsidiaries the actions contemplated by clauses “(A)” or afford access “(B)” (any action described in this clause “(iii)” being referred to the propertiesas a “Change of Board Recommendation”); or (iv) except for a confidentiality agreement contemplated pursuant to Section 6.3(b), books approve or records of recommend, or publicly propose to approve or recommend, or cause or permit the Company or any of its Subsidiaries to any Person that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal execute or enter into any merger agreement, including any letter of intent, memorandum of understanding, agreement in principle, merger share purchase agreement, acquisition asset purchase agreement or share exchange agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement, arrangement or understanding, agreement (A) constituting or related relating to, or that contemplates or is intended or is reasonably likely to or could reasonably be expected to lead toresult in, any an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause requiring the Company (whether or not subject to conditions) to abandon, terminate or fail to consummate the merger Offer or the Merger (any other transaction contemplated by this Agreement of “(each A)” and “(B)”, an “Acquisition Agreement”). Any violation of the foregoing restrictions The Company will, and will cause its Subsidiaries and its and their Representatives to, immediately cease and cause to be terminated any solicitation, discussion or negotiation with any Persons conducted heretofore by any of the Company’s , its Subsidiaries or by any representatives of the Company or any of its SubsidiariesRepresentatives with respect to any inquiries, whether proposals or not such representative offers that constitute an, or are reasonably likely to result in the making, submission or announcement of any, Acquisition Proposal, and, to the extent the Company is so authorized and whether contractually permitted to do so, will request the return or not such representative is purporting to act destruction of all confidential information provided by or on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed its or their Representatives to be a breach any such Person. The Company agrees not to release or permit the release of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutesPerson from, or to amend or waive or permit the Company’s board amendment or waiver of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead toany provision of, a Superior Proposalany confidentiality, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in agreement to which any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board Subsidiaries is or becomes a party or under which any of directors from taking and disclosing the Company or its Subsidiaries has or acquires any rights (unless the Company Board determines in good faith, after having taken into account the advice of the Company’s outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary obligations to the Company’s shareholders a position with respect stockholders under applicable Law), and will use its reasonable best efforts to an Acquisition Proposal enforce or cause to be enforced each such agreement at the extent required by Applicable Lawrequest of Parent.
Appears in 1 contract
Acquisition Proposals. (a) The Company agrees thatFrom the date of this Agreement until the earlier to occur of the Closing or the termination of this Agreement in accordance with its terms, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and the Company shallshall not, and shall cause its Subsidiaries and affiliates use its reasonable best efforts to cause its and their officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative (as such term in used in Rule 12b-2 under collectively, “Representatives”) retained by the Exchange Act) Company or any of its Subsidiaries not to, cause their respective officersdirectly or indirectly, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly initiate, solicit, knowingly encourage initiate or facilitate (including by way of furnishing information) encourage, or take any inquiries other action to facilitate, any inquiries, discussions or the making or submission of any proposal that constitutes, constitutes or could reasonably be expected to lead to, to an Acquisition Proposal, (ii) participate or engage in discussions or negotiations with, or disclose furnish 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 regarding the Company or any of its Subsidiaries to any Person that has made person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that would reasonably be expected to any person in contemplation of lead to an Acquisition Proposal, or (iii) accept an Acquisition Proposal continue or enter into otherwise participate in any agreement, including any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement discussions or other similar agreement, arrangement or understanding, (A) constituting or related tonegotiations, or that is intended to or could reasonably be expected to lead to, otherwise communicate in any Acquisition Proposal way with any person (other than Parent, Parent Bank or Representatives of Parent or Parent Bank), regarding an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiringAcquisition Proposal. Without limiting the foregoing, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or it is understood that any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions set forth in the preceding sentence by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf Representative of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement Section 6.1 by the Company. Notwithstanding anything the foregoing, prior to the contrary receipt of the Requisite Company Vote, in this Agreement, the event the Company and its board of directors may take any actions described in clause (ii) receives an unsolicited bona fide written Acquisition Proposal that did not result from a breach of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives6.1(a) and (y) such proposal constitutes, or the Company’s board its Board of directors determines Directors concludes in good faith (after consultation receiving the advice of its outside legal counsel and, with respect to financial matters, its financial advisors and outside legal counseladvisors) that such proposal could Acquisition Proposal constitutes or is reasonably be expected likely to lead to, to a Superior Proposal, it may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or cause to be furnished nonpublic information or data and participate in such negotiations or discussions to the extent that its Board of Directors concludes in good faith (after receiving the advice of its outside legal counsel and, with respect to financial matters, its financial advisors) that failure to take such actions would be reasonably likely to result in a violation of its fiduciary duties under applicable Law; provided, that, prior to furnishing any nonpublic information permitted to be provided that by the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoingprior sentence, the Company shall be entitled have provided such information to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude Parent and shall have entered into a confidentiality agreement with such Person from making an Acquisition Proposal third party on terms no more favorable to such person than the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver which confidentiality agreement shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing provide such person with any exclusive right to negotiate with the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Law.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Sandy Spring Bancorp Inc)
Acquisition Proposals. (a) The Merger Agreement provides that the Company agrees thatshall not, except as expressly contemplated by this Agreement, neither nor shall it nor permit any of its Subsidiaries shallsubsidiaries to, and nor shall it authorize or permit any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, the Company shall, and shall cause or any of its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) subsidiaries to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly solicit or indirectly initiate, solicitor encourage the submission of, knowingly encourage any takeover proposal or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate or engage in discussions 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 that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 may reasonably be expected to lead to, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted takeover proposal; provided, however, that, prior to the acceptance for payment of the Shares pursuant to this Section 6.2the Offer, if in the opinion of the Board of Directors of the Company, after consultation with counsel, such failure to act would be inconsistent with its fiduciary duties to the Company's stockholders under applicable law, the Company may, in response to an unsolicited takeover proposal, and subject to compliance with the provisions described in the second succeeding paragraph, (A) or furnish information with respect to the Company to any person pursuant to a confidentiality agreement and (B) requiringparticipate in negotiations regarding such takeover proposal. Without limiting the foregoing, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or it is understood that any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions set forth in the preceding sentence by any of the Company’s Subsidiaries director or by any representatives executive officer of the Company or any of its Subsidiariessubsidiaries, whether or not such representative is so authorized and whether or not such representative person is purporting to act on behalf of the Company or any of its Subsidiaries subsidiaries or otherwise, shall be deemed to be a breach of the provisions described in this Agreement paragraph by the Company. Notwithstanding anything to For purposes of the contrary in this Merger Agreement, the Company and its board "takeover proposal" means any proposal or offer from any person relating to any direct or indirect acquisition or purchase of directors may take any actions described in clause (ii) a material amount of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by assets of the Company or any of its Subsidiaries subsidiaries or of over 20% of any class of equity securities (other than acquisitions of stock by institutional investors in the ordinary course of business) of the Company or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents its subsidiaries or other representatives) and (y) such proposal constitutesany tender offer or exchange offer that if consummated would result in any person beneficially owning 20% or more of any class of equity securities of the Company or any of its subsidiaries or which would require approval under any Gaming Law, or any merger, consolidation, business combination, sale of substantially all assets, recapitalization, liquidation, dissolution or similar transaction involving the Company’s board Company or any of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could subsidiaries other than the transactions contemplated by the Merger Agreement, or any other transaction the consummation of which would reasonably be expected to lead toimpede, interfere with, prevent or materially delay the Offer or the Merger or which would reasonably be expected to dilute materially the benefits to Parent of the transactions contemplated hereby. The Merger Agreement provides that, except as set forth in the provisions described in this paragraph, neither the Board of Directors of the Company nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a Superior manner adverse to Parent or the Purchaser, the approval or recommendation by such Board of Directors or any such committee of the Offer, the Merger Agreement or the Merger, (ii) approve or recommend, or propose to approve or recommend, any takeover proposal or (iii) enter into any agreement with respect to any takeover proposal. Notwithstanding the foregoing, in the event prior to the time of acceptance for payment of the Shares in the Offer if in the opinion of the Board of Directors of the Company after consultation with counsel, failure to do so would be inconsistent with its fiduciary duties to the Company's stockholders under applicable law, the Board of Directors of the Company may (subject to the terms of this and the following sentences) withdraw or modify its approval or recommendation of the Offer, the Merger Agreement or the Merger, approve or recommend a competitive proposal, or enter into an agreement with respect to a competitive proposal, in each case at any time after the second business day following Parent's receipt of written notice (a "Notice of Competitive Proposal") advising Parent that the Board of Directors of the Company has received a competitive proposal, specifying the material terms and conditions of such competitive proposal and identifying the person making such competitive proposal; provided that the Company shall not deliver enter into an agreement with respect to a competitive proposal unless the Company shall have furnished Parent with written notice no later than 12:00 noon two business days in advance of any information date that it intends to enter into such third party without agreement. In addition, if the Company proposes to enter into an agreement with respect to any takeover proposal, it shall concurrently with entering into an Acceptable Confidentiality such agreement pay, or cause to be paid, to Parent the Expenses and the Termination Fee. For purposes of the Merger Agreement, a "competitive proposal" means any bona fide take-over proposal to acquire, directly or indirectly, for consideration consisting of cash and/or securities, more than 50% of the Shares then outstanding or all or substantially all the assets of the Company and otherwise on terms which the Board of Directors of the Company determines in its good faith judgment to be more favorable to the Company's stockholders than the Offer and the Merger (taking into account any improvements to the Offer and the Merger proposed by Parent). Notwithstanding The Merger Agreement provides that in addition to the foregoingobligations of the Company described in the immediately preceding paragraph, the Company shall be entitled advise Parent of any request for information or of any takeover proposal, or any proposal with respect to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to takeover proposal, the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution material terms and conditions of such Acceptable Confidentiality Agreementrequest or takeover proposal, and the identity of the person making any such waiver shall not constitute a breach takeover proposal or inquiry. The Company will keep Parent fully informed of this Section 6.2the status and details (including amendments or proposed amendments) of any such request, takeover proposal or inquiry. Nothing The Merger Agreement provides that, nothing contained in this Section 6.2 the provisions described under "Acquisition Proposals" shall prohibit the Company or its board of directors from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any disclosure to the Company’s shareholders a 's stockholders if, in the opinion of the Board of Directors of the Company, after consultation with counsel, failure to so disclose would be inconsistent with its fiduciary duties to the Company's stockholders under applicable law; provided that the Company does not, except as permitted by provisions described in the second preceding paragraph, withdraw or modify, or propose to withdraw or modify, its position with respect to an Acquisition Proposal the Offer or the Merger or approve or recommend, or propose to approve or recommend, a takeover proposal. Conditions to Each Party's Obligation To Effect the Merger. The Merger Agreement provides that the respective obligation of each party to effect the Merger is subject to the extent required by Applicable Law.satisfaction or waiver on or prior to the Closing Date of the following conditions:
Appears in 1 contract
Samples: Banks and Brokers Call
Acquisition Proposals. (a) The Company agrees thatWithout limitation on any of the Company's other obligations under this Agreement (including under Article IV hereof), and except as expressly contemplated otherwise provided by this Agreement, the Company agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and the Company shall, and that it shall use its reasonable best efforts to cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisorsits Subsidiaries' employees, agents and other representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to (i) to, directly or indirectly indirectly, initiate, solicit, knowingly encourage or knowingly facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutesor offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving it, or could reasonably any purchase or sale of the assets (including stock of Subsidiaries) of the Company and its Subsidiaries, taken as a whole, having an aggregate value equal to $100,000 or more, excluding the assets to be expected transferred pursuant to lead toSection 6.2(f), or any purchase or sale of, or tender or exchange offer for, any of the equity securities of such party (any such proposal or offer (other than a proposal or offer made by Parent or an affiliate thereof) being hereinafter referred to as an " Acquisition Proposal"). The Company further agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall use its reasonable best efforts to cause its and its Subsidiaries' employees, agents and representatives (ii) participate including any investment banker, attorney or engage in discussions or negotiations with, or disclose any non-public information or data relating to the Company accountant retained by it or any of its Subsidiaries Subsidiaries) not to, directly or afford access to the propertiesindirectly, books have any discussion with or records of the Company provide any confidential information or any of its Subsidiaries data to any Person that has made an Acquisition Proposal or relating to any person in contemplation of an Acquisition Proposal, or (iii) accept engage in any negotiations concerning an Acquisition Proposal, or knowingly facilitate any effort or attempt to make or implement an Acquisition Proposal 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 accept an Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the CompanyProposal. Notwithstanding anything in this Agreement to the contrary in this Agreementcontrary, the Company and its board Board of directors may take any actions described in clause Directors shall be permitted to (i) comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, and (ii) of this Section 6.2(a) with respect to a third party if at any time prior make such other disclosures to the Effective Time (x) Company's shareholders as the Board of Directors determines in good faith after consulting with its counsel and determining that the failure to make such disclosure would constitute a breach of the Board of Directors' fiduciary duties under applicable law. The Company receives a written Acquisition Proposal from shall promptly notify Parent of any such third party (and inquiries, proposals or 28 offers received by, any such Acquisition Proposal was not initiatedinformation requested from, solicitedor any such discussions or negotiations sought to be initiated or continued with, knowingly encouraged any of it or facilitated by the Company its Subsidiaries or with any of its Subsidiaries or any of their respective its Subsidiaries' officers, directors, investment bankers, attorneys, accountants, financial advisorsemployees, agents or other representatives) representatives indicating, in connection with such notice, the name of such Person and (y) the material terms and conditions of any inquiries, proposals or offers. The Company agrees that it will promptly keep the other party informed of the status and terms of any such proposal constitutesproposals or offers. The Company agrees that it will, or the Company’s board of directors determines in good faith (after consultation with and will cause its financial advisors officers, directors, employees, agents and outside legal counsel) that such proposal could reasonably be expected to lead other representatives to, a Superior Proposalimmediately cease and cause to be terminated any activities, provided that discussions or negotiations existing as of the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach date of this Section 6.2Agreement with any parties conducted heretofore with respect to any Acquisition Proposal. Nothing contained The Company agrees that it will use reasonable best efforts to promptly inform its officers, directors, employees, agents and other representatives of the obligations undertaken in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Law5.4.
Appears in 1 contract
Acquisition Proposals. (a) The Company agrees that, except as expressly contemplated by this Agreement, neither it nor any Upon execution of its Subsidiaries shall, and the Company shall, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly initiate, solicit, knowingly encourage or facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate or engage in discussions 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 that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (Subsidiaries and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisorsemployees, agents and advisors will immediately cease any existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal (as hereinafter defined). The Company may, directly or indirectly, furnish information and access, in each case only in response to requests that were not solicited by the Company (or any officer, director, employee, agent or advisor on its behalf) after the date of this Agreement, to any corporation, partnership, person or other representativesentity or group (each, a "Potential Acquiror") pursuant to confidentiality agreements, and (y) such proposal constitutesmay participate in discussions and negotiate with a Potential Acquiror concerning any merger, sale of assets, sale of shares of capital stock or similar transaction involving the Company or any Subsidiary or division of the Company’s board , if such Potential Acquiror has submitted a written proposal to the Board of directors Directors relating to any such transaction, and the Board of Directors determines in good faith (after consultation with its financial advisors independent legal counsel that the failure to provide such information or access or to engage in such discussions or negotiations would be inconsistent with their fiduciary duties to the Company's shareholders under applicable law. The Company shall notify Acquiror immediately if any such request or proposal, or any inquiry or contact with any Person with respect thereto, is made and outside legal counsel) shall keep Acquiror apprised of all developments that such proposal could reasonably be expected to lead toculminate in the Board withdrawing, a Superior Proposal, provided that modifying or amending its recommendation of the Merger and the other transactions contemplated by this Agreement. The Company shall not deliver any information to such has entered into confidentiality agreements with other third party without entering into an Acceptable parties substantially in the form of the Acquiror Confidentiality Agreement. Notwithstanding The Company agrees not to release any third party from, or waive any provision of, any confidentiality or standstill agreement to which the foregoingCompany is a party unless, in the opinion of the Board of Directors after consultation with independent legal counsel, the Company shall failure to provide such release or waiver would be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal inconsistent with its fiduciary duties to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach 's shareholders under applicable law. For purposes of this Section 6.2. Nothing contained in section 5.04, the term "Acquisition Proposal" means any proposal or offer for a merger, consolidation or similar combination (other than the Merger contemplated by this Section 6.2 shall prohibit Agreement) involving the Company or its board of directors from taking any Subsidiary and disclosing any Potential Acquiror, or any proposal or offer to acquire a significant equity interest in the Company’s shareholders , or a position with respect to an Acquisition Proposal to significant portion of the extent required real estate or mixer division assets of the Company by Applicable Law.a Potential Acquiror. 13 17 5.05
Appears in 1 contract
Acquisition Proposals. (a) The From the date of this Agreement until the earlier to occur of the Closing or the termination of this Agreement in accordance with its terms, the Company agrees thatshall not, except as expressly contemplated by this Agreement, neither it nor and shall not authorize or permit any of its Subsidiaries shallor any of its Subsidiaries’ officers, and directors or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company shall, and shall cause or any of its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officersdirectly or indirectly, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly solicit, initiate, solicitinduce or encourage, knowingly encourage or facilitate (including by way of furnishing information) take any inquiries other action to facilitate, any inquiries, offers, discussions or the making or submission of any proposal that constitutes, constitutes or could reasonably be expected to lead to, to an Acquisition Proposal, (ii) participate or engage in discussions or negotiations with, or disclose furnish 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 regarding the Company or any of its Subsidiaries to any Person that has made person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that would reasonably be expected to lead to an Acquisition Proposal, (iii) continue or otherwise participate in any discussions or negotiations, or otherwise communicate in any way with any person in contemplation of (other than Parent), regarding an Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal, or (iiiv) accept an enter into or consummate any agreement, arrangement, letter of intent or understanding contemplating any Acquisition Proposal 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 Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company requiring it to abandon, terminate or fail to consummate the merger or transactions contemplated hereby. Without limiting the foregoing, it is understood that any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions set forth in the preceding sentence by any of the Company’s Subsidiaries officer, director or by any representatives employee of the Company or any of its Subsidiariesthe Subsidiaries or any investment banker, whether financial advisor, attorney, accountant or not such other representative is so authorized and whether or not such representative is purporting to act on behalf of retained by the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement Section 5.1 by the Company. Notwithstanding anything the foregoing, prior to the contrary in adoption and approval of this AgreementAgreement by the Company’s stockholders at a meeting of the stockholders of the Company, this Section 5.1(a) shall not prohibit the Company from furnishing non-public information regarding the Company and its board of directors may take Subsidiaries to, or entering into discussions with, any actions described person in clause (ii) of this Section 6.2(a) with respect response to a third party if at any time prior an Acquisition Proposal that is submitted to the Effective Time Company by such person (xand not withdrawn) if (1) the Acquisition Proposal constitutes or is reasonably expected to result in a Superior Proposal, (2) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was has not initiated, solicited, knowingly encouraged or facilitated by the Company or violated any of its Subsidiaries or any of their respective officersthe restrictions set forth in this Section 5.1, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives(3) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (faith, after consultation with and based upon the advice of its financial advisors and outside legal counsel) , that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision action is required in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is order for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to comply with its fiduciary obligations to the Company’s shareholders a position with respect stockholders under applicable law, and (4) at least two (2) Business Days prior to furnishing any non-public information to, or entering into discussions with, such person, the Company gives Parent written notice of the identity of such person and of the Company’s intention to furnish non-public information to, or enter into discussions with, such person and the Company receives from such person an Acquisition Proposal executed confidentiality agreement on terms no more favorable to such person than the extent required by Applicable Law.confidentiality agreement between Parent and the Company. 41
Appears in 1 contract
Samples: Agreement and Plan of Merger (Pilgrim Bancshares, Inc.)
Acquisition Proposals. (a) The From the date of this Agreement until the earlier to occur of the Closing or the termination of this Agreement in accordance with its terms, the Company agrees thatshall not, except as expressly contemplated by this Agreement, neither it nor and shall not authorize or permit any of its Subsidiaries shallor any of its Subsidiaries’ officers, and directors or Table of Contents employees or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company shall, and shall cause or any of its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officersdirectly or indirectly, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly initiate, solicit, knowingly encourage initiate or facilitate (including by way of furnishing information) encourage, or take any inquiries other action to facilitate, any inquiries, discussions or the making or submission of any proposal that constitutes, constitutes or could reasonably be expected to lead to, to an Acquisition Proposal, (ii) participate or engage in discussions or negotiations with, or disclose furnish 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 regarding the Company or any of its Subsidiaries to any Person that has made person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that would reasonably be expected to lead to an Acquisition Proposal, (iii) continue or otherwise participate in any discussions or negotiations, or otherwise communicate in any way with any person in contemplation of (other than Purchaser), regarding an Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal, or (iiiv) accept an Acquisition Proposal or enter into or consummate 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, understanding contemplating any Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause requiring the Company to abandon, terminate or fail to consummate the merger or transactions contemplated hereby. Without limiting the foregoing, it is understood that any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions set forth in the preceding sentence by any of the Company’s Subsidiaries officer, director or by any representatives employee of the Company or any of its Subsidiariesthe Subsidiaries or any investment banker, whether financial advisor, attorney, accountant or not such other representative is so authorized and whether or not such representative is purporting to act on behalf of retained by the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement Section 5.1 by the Company. Notwithstanding anything the foregoing, prior to the contrary in adoption and approval of this AgreementAgreement by the Company’s stockholders at a meeting of the stockholders of the Company, this Section 5.1(a) shall not prohibit the Company from furnishing nonpublic information regarding the Company and its board of directors may take Subsidiaries to, or entering into discussions with, any actions described person in clause (ii) of this Section 6.2(a) with respect response to a third party if at any time prior an Acquisition Proposal that is submitted to the Effective Time Company by such person (xand not withdrawn) if (1) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged constitutes or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could is reasonably be expected to lead to, result in a Superior Proposal, provided that (2) the Company shall has not deliver breached any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding of the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained covenants set forth in this Section 6.2 shall prohibit 5.1, (3) the Company or Company’s Board of Directors determines in good faith, after consultation with and based upon the advice of its board outside legal counsel, that such action is required in order for the Board of directors from taking and disclosing Directors to comply with its fiduciary obligations to the Company’s shareholders a position with respect stockholders under applicable law, and (4) at least two (2) Business Days prior to furnishing any nonpublic information to, or entering into discussions with, such person, the Company gives Purchaser written notice of the identity of such person and of the Company’s intention to furnish nonpublic information to, or enter into discussions with, such person and the Company receives from such person an Acquisition Proposal executed confidentiality agreement on terms no more favorable to such person than the extent required by Applicable Lawconfidentiality agreement between Purchaser and the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (SI Financial Group, Inc.)
Acquisition Proposals. (a) The Company agrees that, except Except as expressly contemplated permitted by this Agreement, neither it nor any of its Subsidiaries shall, and the Company shallFactory Point Bancorp shall not, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) any of its Subsidiaries’ officers, directors or employees and any investment banker, financial advisor, attorney, accountant or other representative retained by Factory Point Bancorp or any of its Subsidiaries not to, cause their respective officersdirectly or indirectly, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly initiate, solicit, knowingly initiate or encourage or facilitate (including by way of furnishing non-public information) ), or take any inquiries other action to facilitate, any inquiries, discussions or the making or submission of any proposal that constitutes, constitutes or could reasonably be expected to lead to, to an Acquisition Proposal, (ii) participate or engage in any discussions or negotiations withnegotiations, or disclose otherwise communicate in 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 that has made an Acquisition Proposal or to way with any person in contemplation of (other than Berkshire Hills Bancorp), regarding an Acquisition Proposal, or (iii) accept an Acquisition Proposal or enter into or consummate 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 Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company understanding requiring it to abandon, terminate or fail to consummate the merger or transactions contemplated hereby, (iv) make any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation public statement critical of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company Berkshire Hills Bancorp or any of its Subsidiaries, whether its board of directors, its management or not such representative the Merger or (v) join with or assist any person or entity, directly or indirectly, in opposing or making any statement in opposition to, the Merger. Without limiting the foregoing, it is so authorized and whether or not such representative is purporting to act on behalf understood that any violation of the Company restrictions set forth in the preceding sentence by any officer, director or employee of Factory Point Bancorp or any of the Subsidiaries or any investment banker, financial advisor, attorney, accountant or other representative retained by Factory Point Bancorp or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Law.5.1
Appears in 1 contract
Samples: Agreement and Plan of Merger (Berkshire Hills Bancorp Inc)
Acquisition Proposals. (a) The Company agrees thatDuring the Interim Period, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and the Company shallshall not, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) not to, and shall instruct and use reasonable best efforts to cause its and their respective officersRepresentatives not to, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (ia) directly or indirectly initiate, solicit, knowingly encourage enter into or facilitate (including by way of furnishing information) continue discussions, negotiations or transactions with, or respond to any inquiries or the making or submission of proposals by, any proposal that constitutesPerson with respect to, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate or engage in discussions or negotiations with, or disclose provide any non-public information or data relating to concerning the Company or any of its the Company’s Subsidiaries to any Person relating to, an Acquisition Proposal (other than to inform such Person of the Company’s obligations pursuant to this Section 7.5) or afford to any Person access to the business, properties, books assets, information or records personnel of the Company or any of its the Company’s Subsidiaries to any Person that has made an Acquisition Proposal or to any person in contemplation of connection with an Acquisition Proposal, or (iiib) accept an Acquisition Proposal or enter into any acquisition agreement, including merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding, understanding or 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 Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement agreement relating to an Acquisition Proposal, (each c) grant any waiver, amendment or release under any confidentiality agreement or the anti-takeover laws of any state for purposes of facilitating an “Acquisition Agreement”). Any violation of the foregoing restrictions Proposal, (d) otherwise knowingly encourage or facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal or (e) resolve or agree to do any of the foregoing. The Company during shall promptly (and in any event within two (2) Business Days after receipt thereof) notify Acquiror in writing of the 45-day period following execution receipt of such Acceptable Confidentiality Agreementany inquiry, and any such waiver shall not constitute a breach proposal, offer or request for information received after the date of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board Agreement that constitutes an Acquisition Proposal and keep Acquiror reasonably informed of directors from taking and disclosing to the Company’s shareholders a position any material developments with respect to an any such inquiry, proposal, offer, request for information or Acquisition Proposal to the extent required by Applicable Law(including any material changes thereto).
Appears in 1 contract
Samples: Agreement and Plan of Merger (B. Riley Principal 150 Merger Corp.)
Acquisition Proposals. (a) The Company agrees that, except as expressly contemplated by this Agreement, that neither it the Company --------------------- nor any of its Subsidiaries subsidiaries nor any of the respective officers and directors of the Company or its subsidiaries shall, and the Company shall, shall direct and shall use its best efforts to cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisorsemployees, agents and other representatives not to (i) directly or indirectly initiateincluding, solicit, knowingly encourage or facilitate (including by way of furnishing information) any inquiries or the making or submission of any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate or engage in discussions 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 that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 towithout limitation, any Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) investment banker, attorney or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated accountant retained by the Company or any of its Subsidiaries subsidiaries) not to, initiate, continue, solicit or encourage, directly or indirectly, any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to stockholders of the Company) or furnish any non-public information to any third party, with respect to a merger, consolidation, business combination or similar transaction involving, or any tender offer, exchange offer or other purchase of all or any significant portion of the assets or any equity securities of, the Company or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and its subsidiaries (y) any such proposal constitutesor offer being hereinafter referred to as an "Acquisition Proposal") or, unless the Board of Directors of the -------------------- Company receives an unsolicited written offer with respect to a merger, consolidation or sale of all or substantially all of the Company’s board 's assets or an unsolicited tender or exchange offer for the Shares is commenced, which the Board of directors Directors of the Company determines in good faith (after consultation with its financial advisors and outside receiving advice of independent legal counsel) counsel that such proposal could reasonably be expected action is required for the discharge of their fiduciary duties) is more favorable to lead the stockholders of the Company than the Offer (an "Alternative Transaction"), engage in any ----------------------- negotiations concerning, or provide any confidential information or data to, a Superior or have any discussions with, any person relating to an Acquisition Proposal, provided that or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal. The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing. The Company shall not deliver will as promptly as reasonably practicable (and in any event within 24 hours) notify Purchaser (i) if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to such third party without be initiated with the Company, (ii) of its receipt of an acquisition proposal and (iii) of the existence of an Alternative Transaction. Prior to furnishing nonpublic information to, or entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoingdiscussions or negotiations with, any other persons or entities, the Company shall be entitled obtain from such person or entity an executed confidentiality agreement with terms no less favorable, taken as a whole, to waive the Company than those contained in the Confidentiality Agreement, but which confidentiality agreement shall not include any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making calling for an Acquisition Proposal exclusive right to negotiate with the Company, provided that and the Company shall advise Purchaser of all such waiver is for the limited purpose of enabling nonpublic information delivered to such Person to make an Acquisition Proposal person concurrently with its delivery to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Lawrequesting party.
Appears in 1 contract
Acquisition Proposals. (a) The Company represents and warrants to, and covenants and agrees thatwith, except as expressly contemplated by this Agreement, Parent and Newco that neither it Company nor any of its Subsidiaries shallsubsidiaries has any agreement, and arrangement or understanding with any potential acquiror that, directly or indirectly, would be violated, or require any payments, by reason of the execution, delivery and/or consummation of this Agreement. Company shall, and shall cause its Subsidiaries subsidiaries and affiliates use its best efforts to cause its and their officers, directors, employees, investment bankers, attorneys and other agents and representatives to, immediately cease any existing discussions or negotiations with any person (including a "person" as such term defined in used in Rule 12b-2 under Section 13(d)(3) of the Exchange Act) toother than Parent or Newco (a "Third Party") heretofore conducted with respect to any Acquisition Transaction. Company shall not, and shall cause its subsidiaries and use its best efforts to cause its and their respective officers, directors, employees, investment bankers, attorneys, accountants, financial advisors, attorneys and other agents and other representatives not to (i) to, directly or indirectly indirectly, (x) solicit, initiate, solicitcontinue, knowingly facilitate or encourage or facilitate (including by way of furnishing or disclosing non-public information) any inquiries inquiries, proposals or the making or submission of any proposal that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (ii) participate or engage in discussions 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 that has made an Acquisition Proposal or to any person in contemplation of an Acquisition Proposal, or (iii) accept an Acquisition Proposal 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 offers with respect to, or that is intended to or could reasonably be expected to lead to, any acquisition or purchase of a material portion of the assets or business of, or any significant equity interest in (including by way of a tender offer), or any amalgamation, merger, consolidation or business combination with, or any recapitalization or restructuring, or any similar transaction involving, Company or any of its subsidiaries (the foregoing being referred to collectively as an "Acquisition Proposal (other than an Acceptable Confidentiality Agreement permitted pursuant to this Section 6.2) Transaction"), or (By) requiringnegotiate, intended explore or otherwise communicate in any way with any Third Party with respect to causeany Acquisition Transaction or enter into, approve or which could reasonably be expected to cause the recommend any agreement, arrangement or understanding requiring Company to abandon, terminate or fail to consummate the merger Offer and/or the Amalgamation or any other transaction contemplated by this Agreement (each an “Acquisition Agreement”). Any violation of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Companyhereby. Notwithstanding anything to the contrary in this Agreementthe foregoing, Company may, prior to the purchase of Shares pursuant to the Offer, in response to an unsolicited written proposal with respect to an Acquisition Transaction involving the acquisition of all of the Shares (or all or substantially all of the assets of Company and its board subsidiaries) from a Third Party (which proposal (I) is not subject to a financing condition and is from a person that Xxxxxxx, Xxxxx & Co. or another nationally recognized investment bank advises in writing is financially capable of directors may take any actions described consummating such proposal or (II) is subject to financing, but is from a person that Xxxxxxx, Sachs & Co. or another nationally recognized investment bank advises in clause writing is financially capable of achieving such financing to consummate such proposal, (i) furnish or disclose non-public information to such Third Party and (ii) negotiate, explore or otherwise communicate with such Third Party, in each case only if and to the extent that (a) the Board determines reasonably and in good faith by a majority vote (after receipt of written advice of Company's outside legal counsel that failing to take such action would, in all likelihood, constitute a breach of the fiduciary duties of the Board to Company's shareholders under applicable law), that taking such action would, in all likelihood, lead to an Acquisition Transaction that, based upon the written advice of Xxxxxxx, Xxxxx & Co., is more favorable to Company's shareholders than the Offer and the Amalgamation and that failing to take such action would, in all likelihood, constitute a breach of the fiduciary duties of the Board to Company's shareholders under applicable law (the proposal with respect to an Acquisition Transaction meeting the requirements of the parenthetical clause immediately preceding clause (i) and this Section 6.2(aclause (a), a "Superior Proposal"), (b) prior to furnishing or disclosing any non-public information to, or entering into discussions or negotiations with, such Third Party, Company receives from such Third Party an executed confidentiality agreement with terms no less favorable to Company than those contained in the Confidentiality Agreement, but which confidentiality agreement shall not provide for any exclusive right to negotiate with Company or any payments and (c) Company advises Parent of all such non-public information delivered to such Third Party concurrently with such delivery; provided, however, that Company shall not, and shall cause its affiliates not to, enter into a definitive agreement with respect to a third party if at any time prior to the Effective Time Superior Proposal unless (x) Company concurrently terminates this Agreement in accordance with the Company receives a written Acquisition Proposal from such third party (terms hereof and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or pays any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) amounts required under Article VIII and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected agreement permits Company to lead to, terminate it if it receives a Superior Proposal, provided that the Company shall not deliver any information such termination and related provisions to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled on terms no less favorable to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose including as to fees and reimbursement of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreementexpenses, and any such waiver shall not constitute a breach of this Section 6.2. Nothing as those contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable Lawherein.
Appears in 1 contract
Acquisition Proposals. The Company and its Subsidiaries shall not, and shall use commercially reasonable efforts to cause their respective directors, officers, employees, agents and authorized representatives not to, directly or indirectly, (a) The Company agrees that, except as expressly contemplated by this Agreement, neither it nor any of its Subsidiaries shall, and the Company shall, and shall cause its Subsidiaries and affiliates (as such term in used in Rule 12b-2 under the Exchange Act) to, cause their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents and other representatives not to (i) directly or indirectly initiate, solicit, solicit or knowingly encourage or otherwise knowingly facilitate (including by way of furnishing information) any inquiries with respect to, or the making of, any Acquisition Proposal or submission of any offer or proposal that constitutes, or could reasonably be expected to lead to, to an Acquisition Proposal, (iib) engage, continue or otherwise participate in any negotiations or engage in discussions or negotiations withconcerning, or disclose provide access to its properties, books and records or any non-public confidential information or data to, any Person 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 that has made an Acquisition Proposal or any offer or proposal that could reasonably be expected to lead to an Acquisition Proposal, (c) approve, endorse, recommend, or propose publicly to approve, endorse or recommend, any person in contemplation of an Acquisition Proposal, or (iiid) accept an Acquisition Proposal execute or enter into any agreementinto, 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 agreement relating to or could reasonably be expected to lead to, any Acquisition Proposal Proposal, and the Company shall not resolve or agree to do any of the foregoing. The Company shall immediately cease any solicitations, discussions or negotiations or other activities with any Person (other than the Parties) in connection with an Acceptable Confidentiality Agreement permitted pursuant Acquisition Proposal. The Company also agrees that it will promptly request each Person (other than the Parties) that has prior to this Section 6.2) or (B) requiring, intended to cause, or which could reasonably be expected to cause the Company to abandon, terminate or fail to consummate the merger or any other transaction contemplated by date of this Agreement (each executed a confidentiality agreement in connection with its consideration of an “Acquisition Agreement”). Any violation Proposal to promptly return or destroy all confidential information furnished to such Person by or on behalf of the foregoing restrictions by any of the Company’s Subsidiaries or by any representatives of the Company it or any of its Subsidiaries, whether or not such representative is so authorized and whether or not such representative is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Agreement by the Company. Notwithstanding anything to the contrary in this Agreement, the Company and its board of directors may take any actions described in clause (ii) of this Section 6.2(a) with respect to a third party if at any time subsidiaries prior to the Effective Time (x) the Company receives a written Acquisition Proposal from such third party (and such Acquisition Proposal was not initiated, solicited, knowingly encouraged or facilitated by the Company or any of its Subsidiaries or any of their respective officers, directors, investment bankers, attorneys, accountants, financial advisors, agents or other representatives) and (y) such proposal constitutes, or the Company’s board of directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that such proposal could reasonably be expected to lead to, a Superior Proposal, provided that the Company shall not deliver any information to such third party without entering into an Acceptable Confidentiality Agreement. Notwithstanding the foregoing, the Company shall be entitled to waive any “standstill” or similar provision in any Acceptable Confidentiality Agreement which would preclude such Person from making an Acquisition Proposal to the Company, provided that such waiver is for the limited purpose of enabling such Person to make an Acquisition Proposal to the Company during the 45-day period following execution of such Acceptable Confidentiality Agreement, and any such waiver shall not constitute a breach date of this Section 6.2. Nothing contained in this Section 6.2 shall prohibit the Company or its board of directors from taking and disclosing to the Company’s shareholders a position with respect to an Acquisition Proposal to the extent required by Applicable LawAgreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger
