No Solicitation of Transactions. (a) The Company shall not, and shall cause its Subsidiaries not to, and shall use its reasonable best efforts to cause its and its Subsidiaries’ directors, officers, employees, advisors, attorneys, accountants, investment bankers and agents (with respect to any Person, the foregoing Persons are referred to herein as such Person’s “Representatives”) not to, (i) solicit, initiate, knowingly encourage or facilitate any inquiry with respect to, or the making, submission or announcement of, any Takeover Proposal or (ii) engage in, continue or otherwise participate in any substantive discussions or negotiations regarding, or furnish to any Person any non-public information or data with respect to, or take any other action to facilitate or encourage any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, a Takeover Proposal. Notwithstanding the foregoing, at any time prior to receipt of the Requisite Company Vote, if (i) the Company has not breached this Section 6.2 in any material respect, and (ii) the Company receives a bona fide written Takeover Proposal from a third party that the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) constitutes or may reasonably be expected to lead to a Superior Proposal, the Company may (1) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person making such Takeover Proposal (provided that the Company shall only provide or permit to be provided to such Person any non-public information with respect to the Company or any of its Subsidiaries if (x) such Person has executed a confidentiality agreement that constitutes an Acceptable Confidentiality Agreement and (y) substantially contemporaneously with furnishing any such information to such Person, the Company notifies Parent of such action and furnishes Parent a list of such written information provided to such Person and, to the extent such written information has not been previously furnished to Parent and doing so is consistent with applicable Law, copies of such information), and (2) participate in substantive discussions and negotiations with such Person regarding such Takeover Proposal and, to the extent reasonably required to evaluate a Takeover Proposal, may enter into a customary confidentiality agreement in order to obtain non-public information with respect to such Person (an “Other Confidentiality Agreement”). The Company and its Subsidiaries shall use their reasonable best efforts to inform their Representatives of the restrictions described in this Section 6.2.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ust Inc), Agreement and Plan of Merger (Altria Group, Inc.)
No Solicitation of Transactions. (a) The Company shall, and shall cause the Company Subsidiary, and shall use reasonable best efforts to cause the Company Representatives to, (i) immediately cease and cause to be terminated any discussions or negotiations with any parties (other than Parent, Merger Sub and the Parent Representatives) that may be ongoing as of the date hereof with respect to a Takeover Proposal and (ii) use reasonable best efforts to obtain the prompt return or destruction of any confidential information previously furnished to such other parties (to the extent that the Company has the right to cause such Persons to return or destroy such confidential information under a confidentiality agreement (or other similar agreement) with such Persons). The Company shall not, and shall cause its Subsidiaries not to, the Company Subsidiary and shall use its reasonable best efforts to cause its and its Subsidiaries’ directors, officers, employees, advisors, attorneys, accountants, investment bankers and agents (with respect to any Person, the foregoing Persons are referred to herein as such Person’s “Representatives”) Company Representatives not to, (iA) directly or indirectly solicit, initiate, initiate or knowingly encourage any Takeover Proposal, (B) enter into any agreement or facilitate agreement in principle with respect to a Takeover Proposal, or (C) participate in any inquiry way in any negotiations or discussions regarding, or furnish or disclose to any Third Party any information with respect to, or the making, submission or announcement of, any Takeover Proposal or (ii) engage inProposal; provided, continue or otherwise participate in any substantive discussions or negotiations regardinghowever, or furnish to any Person any non-public information or data with respect to, or take any other action to facilitate or encourage any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, a Takeover Proposal. Notwithstanding the foregoing, at any time prior to receipt of the Requisite Company VoteOffer Closing, if (i) the Company has not breached this Section 6.2 in any material respect, and (ii) the Company receives response to a bona fide written Takeover Proposal from a third party that was not solicited in violation of this Agreement, and that the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputationand outside legal counsel) constitutes constitutes, or may could reasonably be expected to lead to to, a Superior Proposal, the Company may may, subject to compliance with Section 7.3(b), (1) furnish information (including non-public information) and/or draft agreements with respect to the Company and its Subsidiaries the Company Subsidiary to the Person making such Takeover Proposal (and its officers, directors, employees, accountants, consultants, legal counsel, advisors, agents and other representatives) pursuant to a customary confidentiality agreement that contains provisions that are no less favorable in the aggregate to the Company than those contained in the NDA (it being understood and agreed that such confidentiality agreement need not prohibit the making or amendment of any Takeover Proposal) (provided that all such information and a summary of the Company shall only provide material terms of any such draft agreements have previously been made available to Parent or permit are made available to be Parent prior to, or promptly after (and in any event, within 48 hours), the time it is provided to such Person any non-public information with respect to the Company or any of its Subsidiaries if (xPerson) such Person has executed a confidentiality agreement that constitutes an Acceptable Confidentiality Agreement and (y) substantially contemporaneously with furnishing any such information to such Person, the Company notifies Parent of such action and furnishes Parent a list of such written information provided to such Person and, to the extent such written information has not been previously furnished to Parent and doing so is consistent with applicable Law, copies of such information), and (2) participate in substantive discussions and or negotiations with the Person making such Person Takeover Proposal (and its officers, directors, employees, accountants, consultants, legal counsel, advisors, agents and other representatives) regarding such Takeover Proposal andProposal. During the period from the date of this Agreement until the termination of this Agreement in accordance with its terms, to (x) neither the extent reasonably required to evaluate a Takeover ProposalCompany nor the Company Subsidiary shall terminate, may enter into a customary amend, modify or waive any provision of any confidentiality agreement to which it is a party relating to a proposed business combination involving the Company or any standstill agreement to which it is a party unless the Company Board or any committee thereof determines in order good faith, after consultation with outside legal counsel, that failure to obtain non-public information take such action would be reasonably likely to be inconsistent with respect to such Person its fiduciary duties under applicable Law and (an “Other Confidentiality Agreement”). The y) the Company and its Subsidiaries shall use their its reasonable best efforts to inform their Representatives enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, unless the restrictions described Company Board or any committee thereof determines in this Section 6.2good faith, after consultation with outside legal counsel, that taking such action would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Official Payments Holdings, Inc.), Agreement and Plan of Merger (Aci Worldwide, Inc.)
No Solicitation of Transactions. (a) The Neither the ------------------------------- Company shall notnor any Subsidiary shall, and shall cause its Subsidiaries not todirectly or indirectly, and shall use its reasonable best efforts to cause its and its Subsidiaries’ directorsthrough any officer, officersdirector, employeesagent or otherwise, advisorssolicit, attorneys, accountants, investment bankers and agents (with respect initiate or encourage the submission of any proposal or offer from any person relating to any Personacquisition or purchase of all or any material portion of the assets of, or any equity interest in, the foregoing Persons are referred to herein as such Person’s “Representatives”Company or any Subsidiary or any merger, consolidation, business combination, reorganization, recapitalization or similar transaction involving the Company or any Subsidiary (each a "Competing Transaction") not to, (i) solicit, initiate, knowingly encourage or facilitate any inquiry with respect to, or the making, submission or announcement of, any Takeover Proposal or (ii) engage in, continue or otherwise participate in any substantive --------------------- discussions or negotiations regarding, or furnish to any Person other person any non-public information or data with respect to, or take otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other action person to facilitate do or encourage seek any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, a Takeover Proposal. Notwithstanding the foregoing. The Company and each of its Subsidiaries will cease and cause to be terminated any existing activities, at discussions or negotiations by or on its behalf with any time prior to receipt of the Requisite Company Vote, if (i) the Company has not breached this Section 6.2 in any material respect, and (ii) the Company receives a bona fide written Takeover Proposal from a third party that the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) constitutes or may reasonably be expected to lead to a Superior Proposal, the Company may (1) furnish information (including non-public information) other person conducted heretofore with respect to any Competing Transaction and will promptly notify Parent following receipt of any request by any person relating to any possible Competing Transaction or information concerning the Company Company. Section 6.04 of the Disclosure Schedule accurately and its Subsidiaries completely sets forth the name of each person to the Person making such Takeover Proposal (provided that the Company shall only provide whom any confidential documents or permit to be provided to such Person any non-public information with respect to concerning the Company or any of its Subsidiaries if (x) such Person has executed a confidentiality agreement that constitutes an Acceptable Confidentiality Agreement and (y) substantially contemporaneously with furnishing any such information to such Person, was disclosed by or on behalf of the Company notifies Parent since January 1, 1998 for the purpose of discussing a possible change in control transaction involving the Company (a "Potential Buyer"). The Company will promptly request --------------- that each such Potential Buyer either return all of such action confidential documents and furnishes Parent information, and all copies thereof, to the Company or deliver a list written certification of such written information provided destruction to the Company. The Company shall use its best efforts to cause each such Person andPotential Buyer to comply with such request and shall notify Parent promptly following compliance by each Potential Buyer with such request. The Company agrees that it will not disclose any of the terms of this Agreement or the matters referred to herein to any other prospective acquiror of the Company until the Closing Date or earlier if this Agreement is terminated in accordance with its terms, except to the extent such written information has not been previously furnished to Parent and doing so disclosure is consistent with applicable Law, copies of such information), and (2) participate in substantive discussions and negotiations with such Person regarding such Takeover Proposal and, to required by law or the extent reasonably required to evaluate a Takeover Proposal, may enter into a customary confidentiality agreement in order to obtain non-public information with respect to such Person (an “Other Confidentiality Agreement”). The Company and its Subsidiaries shall use their reasonable best efforts to inform their Representatives regulations of the restrictions described Nasdaq Stock Market. Nothing contained in this Section 6.26.04 shall prohibit the Board from furnishing information to, or entering into discussions or negotiations with, any person in connection with an unsolicited (from the date of this Agreement) proposal involving a fully-financed Competing Transaction which is made in writing by such person and which, if consummated, would provide consideration per Share to the shareholders of the Company in excess of the Per Share Amount (a "Superior Proposal"), if, and only to the ----------------- extent that, the Board determines in good faith, based upon the written advice of Xxxxxxxx Xxxxxx Xxxxxxxx and Xxxx, that such action is required for the Board to comply with its fiduciary duties to shareholders under Michigan Law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Durakon Industries Inc), Agreement and Plan of Merger (Lpiv Acquisition Corp)
No Solicitation of Transactions. (a) The Except as set forth in this Section 7.5, until the earlier of the Control Date or the termination of this Agreement in accordance with the terms hereof, the Company and the Company Subsidiaries shall not, and nor shall cause its Subsidiaries not they authorize or knowingly permit any of their respective Representatives to, and shall use its reasonable best efforts to cause its and its Subsidiaries’ directors, officers, employees, advisors, attorneys, accountants, investment bankers and agents (with respect to any Person, the foregoing Persons are referred to herein as such Person’s “Representatives”) not to, directly or indirectly (i) solicit, initiate, knowingly encourage or knowingly facilitate any inquiry with respect to, Acquisition Proposal or the makingmaking thereof, submission or announcement of, any Takeover Proposal or (ii) engage inenter into, continue or otherwise participate in any substantive discussions or negotiations regarding, or furnish to any Person any non-public information or data with respect to, or take otherwise cooperate in any way with, any person (other action than Parent, Purchaser and their Representatives) with respect to facilitate any Acquisition Proposal, or encourage (iii) waive, terminate, modify or fail to enforce any inquiries or the making provision of any proposal that constitutes contractual “standstill” or may reasonably be expected to lead similar obligation of any person other than Parent or its affiliates. The Company immediately shall, and shall cause the Company Subsidiaries and shall instruct each of their respective Representatives immediately to, a Takeover Proposalcease and cause to be terminated any and all discussions or negotiations with any person that may be ongoing with respect to any Acquisition Proposal and request the prompt return or destruction of all confidential information provided to any such party prior to the date of this Agreement and use its commercially reasonable efforts to ensure compliance with such request. Notwithstanding anything to the foregoingcontrary herein, at any time prior to receipt of the Requisite Company VoteAcceptance Date, if (i) the Company has not breached this Section 6.2 in any material respect, and (ii) the Company receives response to a bona fide written Takeover Acquisition Proposal that the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) is, or is reasonably likely to result in, a Superior Proposal, and which Acquisition Proposal did not result from or arise in connection with a third party breach of this Section 7.5(a) and was made after the date hereof, the Company may, subject to compliance with Section 7.5(c), (x) furnish information regarding the Company and the Company Subsidiaries to the person making such Acquisition Proposal (and its Representatives) pursuant to a confidentiality agreement (which shall permit the Company to comply with the terms of Section 7.5(c)) containing confidentiality and standstill provisions not less restrictive to such person than the provisions of the Confidentiality Agreement are to Parent; provided that all such information has previously been provided to Parent or is provided to Parent prior to or concurrent with the time it is provided to such person, and (y) participate in discussions or negotiations with the person making such Acquisition Proposal (and its Representatives) regarding such Acquisition Proposal, but only if and to the extent that in connection with the foregoing clauses (x) and (y), the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) constitutes that such action is necessary to comply with its fiduciary duties under applicable Law, and provided, the Company shall not take any of the actions referred to in the foregoing clauses (x) and (y) unless the Company shall have notified Parent in writing at least three (3) business days prior to taking such action that it intends to take such action and the basis hereunder therefor. In addition, notwithstanding the foregoing, prior to the Acceptance Date, the Company may, to the extent the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) that such action is necessary to comply with its fiduciary duties under applicable Law, not enforce any confidentiality, standstill or may similar agreement to which the Company or any Company Subsidiary is a party for the sole purpose of allowing the other party to such agreement to submit an Acquisition Proposal, or with respect to another party that has submitted an Acquisition Proposal, solely with respect to such submission, that will constitute, or is reasonably be expected likely to lead to to, a Superior Proposal, that did not, in each case, result from a breach by the Company may (1) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person making such Takeover Proposal (provided that the Company shall only provide or permit to be provided to such Person any non-public information with respect to the Company or any of its Subsidiaries if (x) such Person has executed a confidentiality agreement that constitutes an Acceptable Confidentiality Agreement and (y) substantially contemporaneously with furnishing any such information to such Person, the Company notifies Parent of such action and furnishes Parent a list of such written information provided to such Person and, to the extent such written information has not been previously furnished to Parent and doing so is consistent with applicable Law, copies of such information), and (2) participate in substantive discussions and negotiations with such Person regarding such Takeover Proposal and, to the extent reasonably required to evaluate a Takeover Proposal, may enter into a customary confidentiality agreement in order to obtain non-public information with respect to such Person (an “Other Confidentiality Agreement”). The Company and its Subsidiaries shall use their reasonable best efforts to inform their Representatives of the restrictions described in this Section 6.27.5.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Wind River Systems Inc), Agreement and Plan of Merger (Intel Corp)
No Solicitation of Transactions. (a) The Company shall not, and shall cause its Subsidiaries not to, and shall use its reasonable best efforts to cause its and its Subsidiaries’ directors, officers, employees, advisors, attorneys, accountants, investment bankers and agents (with respect to any PersonNone of the Company, the foregoing Persons are referred to herein as such PersonOperating Partnership and the Company’s other Subsidiaries shall, nor shall they authorize or permit any officer, manager, director, employee, or agent or any investment banker, financial advisor, attorney, accountant or other representative (collectively, the “Representatives”) not to, directly or indirectly, (i) solicit, initiate, or initiate or knowingly encourage or knowingly facilitate any inquiry inquiries or offers with respect to, or that reasonably may be expected to lead to the making, submission or announcement of, any Takeover Acquisition Proposal or (ii) engage in, continue or otherwise participate in any substantive discussions or negotiations regarding, or that reasonably may be expected to lead to, or furnish to any Person any non-public information or data with respect to, or take any other action to facilitate or encourage any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead otherwise cooperate with respect to, a Takeover any Acquisition Proposal. Notwithstanding Without limiting the foregoing, the Company shall be responsible for any failure on the part of its Representatives to comply with this Section 7.04. Notwithstanding anything to the contrary in this Section 7.04, nothing contained in this Agreement shall prohibit the Company from, at any time prior to receipt of the Requisite Company VoteShareholder Approval, furnishing any information to, or entering into or participating in discussions or negotiations with, or releasing from any standstill agreement or similar obligation to the Company or any Company Subsidiary, any Person that makes an unsolicited bona fide Acquisition Proposal in writing that did not otherwise result from a breach of this Section 7.04, if (i) the Company has not breached this Section 6.2 in any material respect, and (ii) the Company receives a bona fide written Takeover Proposal from a third party that the Company Board determines in good faith (after consultation consulting with outside its legal counsel and a financial advisor of nationally recognized reputation) advisors that such Acquisition Proposal constitutes or may is reasonably be expected likely to lead to result in a Superior Proposal, the Company may (1ii) furnish information (including non-public information) with respect prior to the Company and its Subsidiaries to the Person making furnishing such Takeover Proposal (provided that the Company shall only provide or permit to be provided to such Person any non-public information with respect to to, or entering into discussions or negotiations with, such Person, the Company notifies Parent that it is furnishing information to, or any of its Subsidiaries if (x) entering into discussions or negotiations with, such Person has executed a confidentiality agreement that constitutes an Acceptable Confidentiality Agreement Person, and (yiv) substantially contemporaneously with prior to furnishing any such non-public information to such Person, the Company notifies (A) provides Parent of such action and furnishes Parent a list of such written with the information to be provided to such Person and, to the extent such written information which Parent has not previously been previously furnished to Parent and doing so is consistent with applicable Law, copies of such information)provided, and (2B) participate in substantive discussions and negotiations with receives from such Person regarding such Takeover Proposal and, an executed confidentiality and standstill agreement no less favorable to the extent reasonably required to evaluate a Takeover Proposal, may enter into a customary confidentiality agreement in order to obtain non-public information with respect to such Person (an “Other Company than the Confidentiality Agreement”). The Without the prior written consent of Parent, the Company and its Subsidiaries shall use their reasonable best efforts will not release any Person from any standstill agreement or similar obligation to inform their Representatives the Company or any Company Subsidiary which is set forth on Item 7.04(a) of the restrictions described in this Section 6.2Disclosure Letter.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Crescent Real Estate Equities Co)
No Solicitation of Transactions. (a) The Notwithstanding anything to the contrary contained in this Agreement but subject to Section 5.4(e) and Section 5.4(f), during the period beginning on the date of this Agreement and continuing until 11:59 p.m. (New York City time) on October 21, 2016 (the “Go Shop Period End Time”), the Company, the Subsidiaries of the Company shall not, and their respective Representatives may and shall cause its Subsidiaries not have the right to, and shall use its reasonable best efforts to cause its and its Subsidiaries’ directors, officers, employees, advisors, attorneys, accountants, investment bankers and agents (with respect to any Person, the foregoing Persons are referred to herein as such Person’s “Representatives”) not to, directly or indirectly: (i) initiate, solicit, initiate, knowingly encourage or facilitate any inquiry with respect inquiries or the making of any proposal, offer or other action that constitutes, or could reasonably be expected to lead to, any Acquisition Proposal, including by way of (A) contacting third parties, (B) broadly disseminating public disclosure or (C) providing access to the makingproperties, submission offices, assets, books, records and personnel of the Company and the Subsidiaries of the Company and furnishing non-public information pursuant to (but only pursuant to) one or announcement ofmore Acceptable Confidentiality Agreements; provided, any Takeover Proposal however, that the Company has previously or substantially contemporaneously furnished, made available or provided access to such non-public information to the Parent; (ii) engage inenter into, continue or otherwise participate in any substantive discussions or negotiations regarding, or furnish to with any Person any non-public information or data with respect relating to, or take in furtherance of such inquiries, proposals, offers or other actions or to obtain, an Acquisition Proposal; (iii) release any other action to facilitate Person from, or encourage refrain from enforcing, any inquiries standstill agreement or the making of any proposal that constitutes or may reasonably be expected to lead to, a Takeover Proposal. Notwithstanding the foregoing, at any time prior to receipt of the Requisite Company Vote, if (i) the Company has not breached this Section 6.2 in any material respect, and (ii) the Company receives a bona fide written Takeover Proposal from a third party that the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) constitutes or may reasonably be expected to lead to a Superior Proposal, the Company may (1) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person making such Takeover Proposal (provided that the Company shall only provide or permit to be provided to such Person any non-public information with respect similar obligation to the Company or any of the Subsidiaries of the Company; and (iv) disclose to the shareholders of the Company any information required to be disclosed under applicable Law. For purposes of this Agreement, the term “Go Shop Bidder” shall mean any Person (including its Subsidiaries if controlled Affiliates and Representatives) that submits a proposal or offer regarding an Acquisition Proposal not later than the Go Shop Period End Time that has not been withdrawn and that the Company Special Committee determines prior to the Go Shop Period End Time (or in the case of any Acquisition Proposal received less than two (2) Business Days before the date of the Go Shop Period End Time, not later than two (2) Business Days after the Go Shop Period End Time), has resulted in, or could be reasonably expected to result in, a Superior Proposal. No later than two (2) Business Days after the Go Shop Period End Time, the Company shall notify the Parent in writing of the identity of each Go Shop Bidder and provide to the Parent (x) such Person has executed a confidentiality copy of any related Acquisition Proposal made in writing and any other written material terms or proposals provided (including, to the extent not included therein, a copy of the acquisition agreement that constitutes an Acceptable Confidentiality Agreement and any related transaction documents and financing commitments, if any) to the Company or any Company Subsidiary and (y) substantially contemporaneously with furnishing any such information to such Person, the Company notifies Parent of such action and furnishes Parent a list of such written information provided to such Person and, to the extent such written information has not been previously furnished to Parent and doing so is consistent with applicable Law, copies of such information), and (2) participate in substantive discussions and negotiations with such Person regarding such Takeover Proposal and, to the extent reasonably required to evaluate a Takeover Proposal, may enter into a customary confidentiality agreement in order to obtain non-public information with respect to such Person (an “Other Confidentiality Agreement”). The Company and its Subsidiaries shall use their reasonable best efforts to inform their Representatives summary of the restrictions described material terms of any related Acquisition Proposal not made in this Section 6.2writing (including any material terms proposed orally or supplementally).
Appears in 1 contract
Samples: Advisory Agreement (American Realty Capital - Retail Centers of America, Inc.)
No Solicitation of Transactions. (a) The Company agrees that, from and after the date hereof until the earlier of the Effective Time or the termination of this Agreement in accordance with Article VIII, it shall not, and that it shall cause its Subsidiaries Representatives not to, and shall use its reasonable best efforts to cause its and its Subsidiaries’ directors, officers, employees, advisors, attorneys, accountants, investment bankers and agents (with respect to any Person, the foregoing Persons are referred to herein as such Person’s “Representatives”) not to, (i) solicitdirectly or indirectly, initiate, knowingly encourage or facilitate any inquiry with respect to, or the making, submission or announcement of, any Takeover Proposal or (ii) engage in, continue or otherwise participate in any substantive discussions or negotiations regarding, or furnish to any Person any non-public information or data with respect to, or take any other action to facilitate solicit or encourage any inquiries or the making of any proposal, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary (any such proposal or offer being hereinafter referred to as a "Company Acquisition Proposal"). The Company further agrees that constitutes or may reasonably be expected to lead it shall not, and that it shall cause its Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data relating to 40 the Company or any Company Subsidiary to any Person relating to a Takeover Company Acquisition Proposal or engage in any negotiations concerning a Company Acquisition Proposal. Notwithstanding , or otherwise facilitate any effort or attempt to make or implement a Company Acquisition Proposal or accept a Company Acquisition Proposal; provided, however, that nothing contained in this Section 6.04(a) shall prevent the foregoing, at any time prior to receipt of Company or the Requisite Company Vote, if Special Committee from (i) complying with Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act with regard to a Company has not breached this Section 6.2 in any material respect, and Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited written Company Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited written Company Acquisition Proposal to the holders of Company receives a bona fide written Takeover Proposal from a third party that Common Stock if, in any such case as is referred to in clause (ii) or (iii), (A) the Company Board Special Committee determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) constitutes or may to the Special Committee that such action could reasonably be expected deemed to lead be necessary for it to act in a Superior Proposalmanner consistent with its fiduciary duties under applicable Law, (B) prior to providing any information or data regarding the Company to any Person or any of such Person's Representatives in connection with a Company Acquisition Proposal by such Person, the Company may (1) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person making such Takeover Proposal (provided that the Company shall only provide or permit to be provided to receives from such Person an executed confidentiality agreement on terms at least as restrictive on such Person as those contained in the Confidentiality Agreement, (C) prior to providing any non-public information with respect or data to the Company any Person or any of its Subsidiaries if (x) such Person's Representatives or entering into discussions or negotiations with any Person has executed or any of such Person's Representatives in connection with a confidentiality agreement that constitutes an Acceptable Confidentiality Agreement and (y) substantially contemporaneously with furnishing any such information to Company Acquisition Proposal by such Person, the Company notifies Parent promptly of the receipt of such action and furnishes Parent a list Company Acquisition Proposal indicating, in connection with such notice, the name of such Person and attaching a copy of the proposal or offer or providing a complete written information provided to such Person and, to the extent such written information has not been previously furnished to Parent and doing so is consistent with applicable Law, copies of such information)summary thereof, and (2D) participate in substantive discussions and negotiations with such Person regarding such Takeover Proposal and, to the extent reasonably required to evaluate a Takeover Proposal, may enter into a customary confidentiality agreement in order to obtain non-public information with respect to such Person (an “Other Confidentiality Agreement”Company has not breached its obligations under the first sentence of this Section 6.04(a). The Company agrees that it will immediately cease and its Subsidiaries cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Company Acquisition Proposal. The Company agrees that it shall use their reasonable best efforts to inform their Representatives keep Parent informed, on a current basis, of the restrictions described status and terms of any such proposals or offers and the status of any such discussions or negotiations. The Company agrees that it will take the necessary steps to promptly inform each Representative of the Company of the obligations undertaken in this Section 6.26.04(a).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Healtheon Webmd Corp)
No Solicitation of Transactions. (a) The Notwithstanding anything to the contrary contained in this Agreement but subject to Section 5.4(e) and Section 5.4(f), during the period beginning on the date of this Agreement and continuing until 11:59 p.m. (New York City time) on October 21, 2016 (the “Go Shop Period End Time”), the Company, the Subsidiaries of the Company shall not, and their respective Representatives may and shall cause its Subsidiaries not have the right to, and shall use its reasonable best efforts to cause its and its Subsidiaries’ directors, officers, employees, advisors, attorneys, accountants, investment bankers and agents (with respect to any Person, the foregoing Persons are referred to herein as such Person’s “Representatives”) not to, directly or indirectly: (i) initiate, solicit, initiate, knowingly encourage or facilitate any inquiry with respect inquiries or the making of any proposal, offer or other action that constitutes, or could reasonably be expected to lead to, any Acquisition Proposal, including by way of (A) contacting third parties, (B) broadly disseminating public disclosure or (C) providing access to the makingproperties, submission offices, assets, books, records and personnel of the Company and the Subsidiaries of the Company and furnishing non-public information pursuant to (but only pursuant to) one or announcement ofmore Acceptable Confidentiality Agreements; provided, any Takeover Proposal however, that the Company has previously or substantially contemporaneously furnished, made available or provided access to such non-public information to the Parent; (ii) engage inenter into, continue or otherwise participate in any substantive discussions or negotiations regarding, or furnish to with any Person any non-public information or data with respect relating to, or take in furtherance of such inquiries, proposals, offers or other actions or to obtain, an Acquisition Proposal; (iii) release any other action to facilitate Person from, or encourage refrain from enforcing, any inquiries standstill agreement or the making of any proposal that constitutes or may reasonably be expected to lead to, a Takeover Proposal. Notwithstanding the foregoing, at any time prior to receipt of the Requisite Company Vote, if (i) the Company has not breached this Section 6.2 in any material respect, and (ii) the Company receives a bona fide written Takeover Proposal from a third party that the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) constitutes or may reasonably be expected to lead to a Superior Proposal, the Company may (1) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person making such Takeover Proposal (provided that the Company shall only provide or permit to be provided to such Person any non-public information with respect similar obligation to the Company or any of the Subsidiaries of the Company; and (iv) disclose to the shareholders of the Company any information required to be disclosed under applicable Law. For purposes of this Agreement, the term “Go Shop Bidder” shall mean any Person (including its Subsidiaries if controlled Affiliates and Representatives) that submits a proposal or offer regarding an Acquisition Proposal not later than the Go Shop Period End Time that has not been withdrawn and that the Company Special Committee determines prior to the Go Shop Period End Time (or in the case of any Acquisition Proposal received less than two (2) Business Days before the date of the Go Shop Period End Time, not later than two (2) Business Days after the Go Shop Period End Time), has resulted in, or could be reasonably expected to result in, a Superior Proposal. No later than two (2) Business Days after the Go Shop Period End Time, the Company shall notify the Parent in writing of the identity of each Go Shop Bidder and provide to the Parent (x) such Person has executed a confidentiality copy of any related Acquisition Proposal made in writing and any other written material terms or proposals provided (including, to the extent not included therein, a copy of the acquisition agreement that constitutes an Acceptable Confidentiality Agreement and any related transaction documents and financing commitments, if any) to the Company or any Company Subsidiary and (y) substantially contemporaneously with furnishing a written summary of the material terms of any such information to such Person, the Company notifies Parent of such action and furnishes Parent a list of such written information provided to such Person and, to the extent such written information has related Acquisition Proposal not been previously furnished to Parent and doing so is consistent with applicable Law, copies of such information), and made in writing (2) participate in substantive discussions and negotiations with such Person regarding such Takeover Proposal and, to the extent reasonably required to evaluate a Takeover Proposal, may enter into a customary confidentiality agreement in order to obtain non-public information with respect to such Person (an “Other Confidentiality Agreement”including any material terms proposed orally or supplementally). The Company and its Subsidiaries shall use their reasonable best efforts to inform their Representatives of the restrictions described in this Section 6.2.66
Appears in 1 contract
Samples: Advisory Agreement
No Solicitation of Transactions. (a) The Until this Agreement has been terminated as provided herein, Company shall not, directly or indirectly, and shall cause its Subsidiaries Representatives not to, and shall use its reasonable best efforts to cause its and its Subsidiaries’ directorsdirectly or indirectly, officers, employees, advisors, attorneys, accountants, investment bankers and agents (with respect to any Person, the foregoing Persons are referred to herein as such Person’s “Representatives”) not to, (i) solicit, initiate, knowingly encourage or facilitate any inquiry with respect to, or the making, submission or announcement of, any Takeover Proposal or (ii) engage in, continue or otherwise participate in any substantive discussions or negotiations regarding, or furnish to any Person any non-public information or data with respect to, or take any other action to facilitate initiate or encourage (including by way of furnishing nonpublic information), any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes constitutes, or may reasonably be expected to lead to, any Competing Transaction, or enter into or maintain or continue discussions or negotiate with any person in furtherance of such inquiries or to obtain a Takeover Proposal. Notwithstanding Competing Transaction, or agree to or endorse any Competing Transaction, or authorize or permit any of Company's Representatives or subsidiaries, or any Representative retained by Company's subsidiaries, to take any such action; PROVIDED, HOWEVER, that nothing contained in this Agreement, including this Section 6.04, shall prohibit the foregoing, at any time Company or the board of directors of Company (i) from complying with Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act with regard to a tender or exchange offer not made in violation of this Section 6.04 or (ii) prior to receipt of the Requisite approval by the stockholders of Company Voteof this Agreement and the Merger from providing information (subject to a confidentiality agreement at least as restrictive as the Confidentiality Agreement) in connection with, if and negotiating, another unsolicited, bona fide written proposal regarding a Competing Transaction that (i) Company's board of directors shall have concluded in good faith, in part on the Company has not breached this Section 6.2 in any material respectbasis of advice of independent outside counsel of nationally recognized reputation, and that such action is necessary to prevent Company's board of directors from violating its fiduciary duties to Company's stockholders under applicable law, (ii) if any cash consideration is involved, shall not be subject to any financing contingency, and with respect to which Company's board of directors shall have determined (based in part upon the Company receives a bona fide written Takeover Proposal from a third party that the Company Board determines in good faith (after consultation with outside legal counsel and a advice of Company's independent financial advisor advisors of nationally recognized reputation) constitutes or may that the acquiring party is reasonably be expected to lead to a Superior Proposalcapable of consummating such Competing Transaction on the terms proposed, the Company may and (1iii) furnish information (including non-public information) with respect Company's board of directors reasonably believes in good faith that such Competing Transaction provides greater value to the stockholders of Company and its Subsidiaries than the Merger (based in part upon the written opinion of Company's independent financial advisors of nationally recognized reputation that such Competing Transaction is superior from a financial point of view) (any such Competing Transaction being referred to herein as a "SUPERIOR PROPOSAL"). Any violation of the Person making such Takeover Proposal (provided that the Company shall only provide or permit to be provided to such Person restrictions set forth in this Section 6.04 by any non-public information with respect to the Representative of Company or any of its Subsidiaries if (x) Subsidiaries, whether or not such Person has executed is purporting to act on behalf of Company or otherwise, shall be deemed to be a confidentiality agreement that constitutes an Acceptable Confidentiality Agreement and (y) substantially contemporaneously with furnishing any such information to such Person, the Company notifies Parent breach of such action and furnishes Parent a list of such written information provided to such Person and, to the extent such written information has not been previously furnished to Parent and doing so is consistent with applicable Law, copies of such information), and (2) participate in substantive discussions and negotiations with such Person regarding such Takeover Proposal and, to the extent reasonably required to evaluate a Takeover Proposal, may enter into a customary confidentiality agreement in order to obtain non-public information with respect to such Person (an “Other Confidentiality Agreement”). The Company and its Subsidiaries shall use their reasonable best efforts to inform their Representatives of the restrictions described in this Section 6.2.6.04
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Netgravity Inc)
No Solicitation of Transactions. (a) The Company agrees that (i) it and its officers, directors and employees shall not, (ii) Company Subsidiaries and Company Subsidiaries' officers, directors and employees shall cause its Subsidiaries not to, and (iii) it shall use its reasonable best efforts to cause not authorize or permit its and its Subsidiaries’ directors, officers, employees, advisors, attorneys, accountants, investment bankers ' agents and agents (with respect to any Person, the foregoing Persons are referred to herein as such Person’s “Representatives”) not representatives to, (iA) solicitdirectly or indirectly, initiate, solicit, participate in, or knowingly encourage or facilitate any inquiry with respect to, or the making, submission or announcement of, any Takeover Proposal or (ii) engage in, continue or otherwise participate in any substantive discussions or negotiations regarding, or furnish inquiries relating to any Person any non-public information or data with respect to, or take any other action to facilitate or encourage any inquiries or the making of any proposal that constitutes Acquisition Proposal or may reasonably be expected (B) directly or indirectly, continue, enter into or engage in any negotiations or discussions concerning any Acquisition Proposal with, or furnish any information relating to lead Company or any Company Subsidiary or provide access to the properties, books and records or any confidential information or data of Company or any Company Subsidiary to, a Takeover any Person relating to an Acquisition Proposal. Notwithstanding the foregoing, at nothing contained in this Agreement shall prevent Company, the Board or any time prior to receipt special committee of the Requisite Company VoteBoard that may be formed (a "SPECIAL COMMITTEE") from, if (i) taking and disclosing to its shareholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act, (ii) prior to the Company Shareholders' Approval being obtained, providing access to properties, books and records and providing information or data in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Board or Special Committee receives from the Person so requesting such information an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement (except for such changes specifically necessary in order for Company to be able to comply with its obligations under this Agreement) (provided that all such written information is also provided on a prior or substantially concurrent basis to Parent), or (iii) prior to the Company Shareholders' Approval being obtained, engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal (including Persons with whom the Company has not breached negotiated with prior to the execution and delivery of this Section 6.2 Agreement), if and only to the extent that, in any material respect, and connection with the foregoing clauses (ii) and (iii), (A) the Company receives a bona fide written Takeover Proposal from a third party that the Company Board or Special Committee (after consultation with its independent legal counsel) determines in good faith that such action is necessary for the Board or Special Committee to comply with its fiduciary duties to Company's Shareholders under applicable law, (B) such Acquisition Proposal is not subject to any financing contingencies or is, in the good faith judgment of the Board or Special Committee (after consultation with outside its financial advisor), reasonably capable of being financed by such other Person, and (C) the Board or Special Committee determines in good faith after consultation with its independent legal counsel and a financial advisor (taking into account among other things the legal, financial, regulatory and other aspects of nationally recognized reputationthe proposal, the Person making the proposal, the likelihood of consummation and the time to complete such transaction) constitutes or may that such Acquisition Proposal is reasonably capable of being completed and, if consummated, would reasonably be expected to lead result in a transaction more favorable to a Superior Proposal, Company's Shareholders than the Company may transaction contemplated by this Agreement (1) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person making such Takeover Proposal (provided that the Company shall only provide or permit to be provided to such Person any non-public information with respect to the Company or any of its Subsidiaries if (x) such Person has executed a confidentiality agreement that constitutes an Acceptable Confidentiality Agreement and (y) substantially contemporaneously with furnishing any such information more favorable Acquisition Proposal being referred to such Person, the Company notifies Parent of such action and furnishes Parent a list of such written information provided to such Person and, to the extent such written information has not been previously furnished to Parent and doing so is consistent with applicable Law, copies of such information), and (2) participate in substantive discussions and negotiations with such Person regarding such Takeover Proposal and, to the extent reasonably required to evaluate a Takeover Proposal, may enter into a customary confidentiality agreement in order to obtain non-public information with respect to such Person (an “Other Confidentiality Agreement”). The Company and its Subsidiaries shall use their reasonable best efforts to inform their Representatives of the restrictions described in this Section 6.2Agreement as an "SUPERIOR PROPOSAL").
Appears in 1 contract
No Solicitation of Transactions. Section 6.4.1 The Company shall, and shall cause each Company Subsidiary and the Company Representatives to, immediately cease and cause to be terminated any discussions or negotiations with any Third Parties (aother than the Parent Representatives) that may be ongoing as of the date hereof with respect to an actual or potential Takeover Proposal. The Company shall use its reasonable best efforts to obtain, in accordance with the terms of any applicable confidentiality agreement, the return or destruction of any confidential information previously furnished to any such Person by the Company, any Company Subsidiary or any Company Representative. In addition, the Company shall not, and shall cause its Subsidiaries not to, each Company Subsidiary and shall use its reasonable best efforts to cause its and its Subsidiaries’ directors, officers, employees, advisors, attorneys, accountants, investment bankers and agents (with respect to any Person, the foregoing Persons are referred to herein as such Person’s “Representatives”) Company Representatives not to, (ia) directly or indirectly, solicit, initiate, or knowingly encourage or facilitate any inquiry with respect to, or the making, submission or announcement of, any Takeover Proposal or (ii) engage in, continue or otherwise participate in any substantive discussions or negotiations regarding, or furnish to any Person any including by way of furnishing non-public information or data with respect toproviding access to its properties, books, records or take any other action to facilitate or encourage personnel) any inquiries regarding, or the making of any proposal or offer that constitutes constitutes, or may could reasonably be expected to lead toresult in, a Takeover Proposal. Notwithstanding the foregoing, (b) enter into any agreement or agreement in principle with respect to a Takeover Proposal or (c) engage in any negotiations or discussions regarding, or furnish or disclose to any Third Party any information with respect to, any Takeover Proposal; provided, however, that at any time prior to receipt of obtaining the Requisite Company VoteStockholder Approval, if (i) the Company has not breached this Section 6.2 in any material respect, and (ii) the Company receives response to a bona fide written Takeover Proposal from a third party received by the Company after the date hereof that was not solicited in violation of this Section 6.4.1 and that the Company Board determines in good faith (after consultation with its outside legal counsel and a financial advisor of nationally recognized reputationadvisors) constitutes constitutes, or may could reasonably be expected to lead to to, a Superior Proposal, and, that the failure to take the actions set forth in clauses (x) or (y) below with respect to such Takeover Proposal would be inconsistent with its fiduciary duties under applicable law, then the Company may may, in response to such Takeover Proposal, subject to compliance with Section 6.4.2 and Section 6.4.3, (1x) provide access to its properties, Contracts, personnel, books and records and furnish information (including non-public information) , data and/or draft agreements with respect to the Company and its the Company Subsidiaries to the Person making such Takeover Proposal (provided and its officers, directors, employees, accountants, consultants, legal counsel, advisors, agents and other representatives) and (y) participate in discussions or negotiations with the Person making such Takeover Proposal (and its officers, directors, employees, accountants, consultants, legal counsel, advisors, agents and other representatives) regarding such Takeover Proposal; provided, that, prior to furnishing such information to or entering into discussions or negotiations with such Person, the Company shall receive from such Person an executed confidentiality agreement, the terms of which shall be substantially similar to, and not materially less favorable to the Company than, in the aggregate, those contained in the Confidentiality Agreement; provided, further that the Company shall only promptly provide or permit to be provided to such Person Parent any non-public information with respect to concerning the Company or any of its Subsidiaries if (x) such Person has executed a confidentiality agreement that constitutes an Acceptable Confidentiality Agreement and (y) substantially contemporaneously with furnishing any such information to such Person, the Company notifies Parent of such action and furnishes Parent a list of such written information not previously provided to such Person and, Parent or the Parent Representatives that is provided to the extent such written information has not been previously furnished to Parent and doing so is consistent with applicable Law, copies of such information), and (2) participate in substantive discussions and negotiations with such Person regarding making such Takeover Proposal and, to the extent reasonably required to evaluate a Takeover Proposal, may enter into a customary confidentiality agreement in order to obtain non-public information with respect to such Person (an “Other Confidentiality Agreement”). The Company and its Subsidiaries shall use their reasonable best efforts to inform their Representatives of the restrictions described in this Section 6.2.
Appears in 1 contract
No Solicitation of Transactions. (a) The Except as set forth in this Section 6.3, until the termination of this Agreement in accordance with the terms hereof, the Company shall not, and shall cause its the Company Subsidiaries not to, and shall use its reasonable best efforts to cause not authorize or permit its and its the Company Subsidiaries’ directors, officers, employees, advisors, attorneys, accountants, investment bankers and agents (with respect to any Person, the foregoing Persons are referred to herein as such Person’s “Representatives”) not respective Representatives to, directly or indirectly (i) solicit, initiate, knowingly encourage or knowingly facilitate any inquiry with respect to, Acquisition Proposal or the makingmaking thereof, submission or announcement of, any Takeover Proposal or (ii) engage inenter into, continue or otherwise participate in any substantive discussions or negotiations regarding, or furnish any information to, or otherwise cooperate in any way with, any Third Party or their Representatives that is seeking to make, or has made, any Person Acquisition Proposal, or (iii) waive, terminate, modify or fail to enforce any non-public information provision of any contractual “standstill” or data confidentiality or similar obligation of any Third Party. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any Company Subsidiary or any Representative of the Company or any Company Subsidiary shall be a breach of this Section 6.3 by the Company. The Company immediately shall, and shall cause the Company Subsidiaries and shall instruct each of their respective Representatives immediately to, cease and cause to be terminated any and all discussions or negotiations with any person that may be ongoing with respect to, or take any other action to facilitate or encourage any inquiries or the making of any proposal that constitutes or may would reasonably be expected to lead to, a Takeover Proposalany Acquisition Proposal and request the prompt return or destruction of all confidential information provided to any such person or its Representatives prior to the date of this Agreement and use its commercially reasonable efforts to ensure compliance with such request. Notwithstanding anything to the foregoingcontrary herein, at any time prior to receipt of obtaining the Requisite Required Company Vote, if (i) the Company has not breached this Section 6.2 in any material respect, and (ii) the Company receives response to a bona fide unsolicited written Takeover Acquisition Proposal made after the date hereof, that did not result from or arise out of a third party breach of this Section 6.3, and that the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) is, or is reasonably likely to lead to, a Superior Proposal, the Company may, subject to compliance with Section 6.3(c), (x) furnish information regarding the Company and the Company Subsidiaries to the person making such Acquisition Proposal (and its Representatives) pursuant to a confidentiality agreement (which shall permit the Company to comply with the terms of Section 6.3(c)) containing confidentiality and other provisions not less restrictive to such Third Party than the provisions of the Confidentiality Agreement are to Parent; provided, however, that all such information has previously been made available to Parent or is made available to Parent prior to, or concurrent with, the time it is provided to such person, and (y) participate in discussions or negotiations with the person making such Acquisition Proposal (and its Representatives) regarding such Acquisition Proposal, but, in connection with the foregoing clauses (x) and (y), only if the Company Board determines in good faith (after Table of Contents consultation with outside legal counsel and a financial advisor of nationally recognized reputation) constitutes or may that the failure to take such action would reasonably be expected to lead to be a Superior Proposalbreach of its fiduciary duties under applicable Law, the Company may (1) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person making such Takeover Proposal (provided provided, however, that the Company shall only provide or permit to be provided to such Person any non-public information with respect to the Company or not take any of its Subsidiaries if the actions referred to in the foregoing clauses (x) such Person has executed a confidentiality agreement that constitutes an Acceptable Confidentiality Agreement and (y) substantially contemporaneously with furnishing any such information to such Person, unless the Company notifies shall have notified Parent of in writing, at least two (2) business days prior to taking such action, that it intends to take such action and furnishes Parent a list of such written information provided to such Person and, to the extent such written information has not been previously furnished to Parent and doing so is consistent with applicable Law, copies of such information), and (2) participate in substantive discussions and negotiations with such Person regarding such Takeover Proposal and, to the extent reasonably required to evaluate a Takeover Proposal, may enter into a customary confidentiality agreement in order to obtain non-public information with respect to such Person (an “Other Confidentiality Agreement”). The Company and its Subsidiaries shall use their reasonable best efforts to inform their Representatives of the restrictions described in this Section 6.2basis hereunder therefor.
Appears in 1 contract
No Solicitation of Transactions. Section 5.6.1 None of the Company or any Company Subsidiary shall, directly or indirectly, take (a) The and the Company shall notnot authorize or permit the Company Representatives to take) any action to (A) knowingly encourage (including by way of furnishing non-public information), and shall cause its Subsidiaries not tosolicit, and shall use its reasonable best efforts to cause its and its Subsidiaries’ directorsinitiate or facilitate any Acquisition Proposal, officers, employees, advisors, attorneys, accountants, investment bankers and agents (B) enter into any agreement with respect to any Person, the foregoing Persons are referred to herein as such Person’s “Representatives”) not to, (i) solicit, initiate, knowingly encourage or facilitate any inquiry with respect to, or the making, submission or announcement of, any Takeover 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 or (iiC) engage in, continue or otherwise participate in any substantive way in discussions or negotiations regardingwith, or furnish to any Person information to, any non-public information or data with respect toperson (other than Parent, Merger Sub and the Parent Representatives) in connection with, or take any other action to knowingly facilitate or encourage any inquiries or the making of any proposal that constitutes constitutes, or may would reasonably be expected to lead to, a Takeover any Acquisition Proposal. Notwithstanding the foregoing; provided, however, that if, at any time prior to receipt the obtaining of the Requisite Company VoteCompany's stockholders' approval of this Agreement and, if (i) so long as neither the Company has not nor any Company Subsidiary nor any Company Representatives shall have breached any of the provisions of this Section 6.2 in any material respect5.6.1, and (ii) the Company receives a bona fide written Takeover Proposal from a third party that the Company Board determines in good faith (faith, after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) constitutes or may counsel, that failing to take such action would be inconsistent with its fiduciary duties to stockholders, the Company may, in response to an Acquisition Proposal that the Company Board, after consultation with the Company Financial Advisor, determines is reasonably be expected likely to lead to a Superior ProposalProposal and subject to the Company's compliance with Section 5.6.2, the Company may (1x) furnish information (including non-public information) with respect to the Company and its the Company Subsidiaries to the Person person making such Takeover Acquisition Proposal (provided that pursuant to a customary confidentiality agreement the Company shall only provide or permit benefits of the terms of which are no more favorable to be provided the other party to such Person any non-public information with respect to the Company or any of its Subsidiaries if (x) such Person has executed a confidentiality agreement that constitutes an Acceptable Confidentiality Agreement than those in place with Parent and (y) substantially contemporaneously with furnishing any such information to such Person, the Company notifies Parent of such action and furnishes Parent a list of such written information provided to such Person and, to the extent such written information has not been previously furnished to Parent and doing so is consistent with applicable Law, copies of such information), and (2) participate in substantive discussions and or negotiations with such Person regarding such Takeover Proposal and, to the extent reasonably required to evaluate a Takeover Proposal, may enter into a customary confidentiality agreement in order to obtain non-public information with respect to such Person (Acquisition Proposal. Upon execution of this Agreement, the Company shall cease immediately and cause to be terminated any and all existing discussions or negotiations with any parties conducted heretofore with respect to an “Other Confidentiality Agreement”). The Company Acquisition Proposal and its Subsidiaries shall use their reasonable best efforts to inform their Representatives promptly request that all confidential information with respect thereto furnished on behalf of the restrictions described in this Section 6.2Company be returned or destroyed.
Appears in 1 contract
No Solicitation of Transactions. Section 5.8.1 None of the Company or any of its Subsidiaries shall, directly or indirectly, take (and the Company shall not authorize or permit the Company Representatives or other affiliates to take) any action to (a) The Company shall notencourage (including by way of furnishing non-public information), and shall cause its Subsidiaries not tosolicit, and shall use its reasonable best efforts to cause its and its Subsidiaries’ directorsinitiate or facilitate any Acquisition Proposal, officers, employees, advisors, attorneys, accountants, investment bankers and agents (b) enter into any agreement with respect to any Person, the foregoing Persons are referred to herein as such Person’s “Representatives”) not to, (i) solicit, initiate, knowingly encourage or facilitate any inquiry with respect to, or the making, submission or announcement of, any Takeover 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 or (iic) engage in, continue or otherwise participate in any substantive way in discussions or negotiations regardingwith, or furnish to any Person information to, any non-public information or data with respect toperson in connection with, or take any other action to facilitate or encourage any inquiries or the making of any proposal that constitutes constitutes, or may could reasonably be expected to lead to, a Takeover any Acquisition Proposal. Notwithstanding the foregoing; provided, however, that if, at any time prior to receipt the obtaining of the Requisite Company VoteStockholder Approval, if (i) the Company has not breached this Section 6.2 in any material respect, and (ii) the Company receives a bona fide written Takeover Proposal from a third party that the Company Board determines in good faith (faith, after consultation with outside legal counsel and its financial advisors, that it would otherwise be reasonably likely to constitute a financial advisor breach of nationally recognized reputation) constitutes or may reasonably be expected the directors' fiduciary duties to lead the Company Stockholders, the Company may, in response to a Superior Proposal, Proposal and subject to the Company may Company's compliance with Section 5.8.2 (1x) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person person making such Takeover Superior Proposal (provided that pursuant to a customary confidentiality agreement the Company shall only provide or permit benefits of the terms of which are no more favorable to be provided the other party to such Person any non-public information with respect to the Company or any of its Subsidiaries if (x) such Person has executed a confidentiality agreement that constitutes an Acceptable Confidentiality Agreement than those in place with Parent and (y) substantially contemporaneously with furnishing any such information to such Person, the Company notifies Parent of such action and furnishes Parent a list of such written information provided to such Person and, to the extent such written information has not been previously furnished to Parent and doing so is consistent with applicable Law, copies of such information), and (2) participate in substantive discussions and or negotiations with such Person regarding such Takeover Proposal and, to the extent reasonably required to evaluate a Takeover Proposal, may enter into a customary confidentiality agreement in order to obtain non-public information with respect to such Person (an “Other Confidentiality Superior Proposal. Upon execution of this Agreement”). The , the Company shall cease immediately and its Subsidiaries shall use their reasonable best efforts cause to inform their Representatives be terminated any and all existing discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal and promptly request that all confidential information with respect thereto furnished on behalf of the restrictions described in this Section 6.2Company be returned.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Digital Generation Systems Inc)
No Solicitation of Transactions. (a) The None of the Company, the Company Subsidiary or any of the Former Subsidiaries shall, directly or indirectly, take (nor shall notthe Company authorize or permit its Representatives or, and shall cause its Subsidiaries not toto the extent within the Company’s control, and shall use its reasonable best efforts other affiliates to cause its and its Subsidiaries’ directorstake) any action to (i) encourage (including by way of furnishing nonpublic information), officerssolicit, employeesinitiate or facilitate any Acquisition Proposal (as defined in Section 6.04(c)), advisors(ii) enter into any letter of intent, attorneys, accountants, investment bankers and agents (term sheet or other agreement with respect to any Person, the foregoing Persons are referred to herein as such Person’s “Representatives”) not to, (i) solicit, initiate, knowingly encourage or facilitate any inquiry with respect to, or the making, submission or announcement of, any Takeover Acquisition Proposal or (iiiii) engage in, continue or otherwise participate in any substantive way in discussions or negotiations regardingwith, or furnish to any Person information to, any non-public information or data with respect toperson in connection with, or take any other action to facilitate or encourage any inquiries or the making of any proposal that constitutes constitutes, or may could reasonably be expected to lead to, a Takeover any Acquisition Proposal. Notwithstanding the foregoing; provided, however, that if, at any time prior to receipt the obtaining of the Requisite Company VoteStockholders’ Approval, if (i) the Board of Directors of the Company has not breached this Section 6.2 in any material respect, and (ii) the Company receives a bona fide written Takeover Proposal from a third party that the Company Board determines in good faith (after consultation with faith, based on the advice of outside legal counsel and a financial advisor of nationally recognized reputation) constitutes or may reasonably be expected counsel, that it is necessary to lead do so to discharge properly its fiduciary duties to stockholders, the Company may, in response to a Superior ProposalProposal (as defined below) and subject to such party’s compliance with Section 6.04(b), the Company may (1A) furnish information (including non-public information) with respect to the Company and its Subsidiaries the Company Subsidiary to the Person person making such Takeover Superior Proposal (provided that pursuant to a customary confidentiality agreement the Company shall only provide or permit to be provided to such Person any non-public information with respect terms of which are no less favorable to the Company or any than the terms of its Subsidiaries if (x) such Person has executed a confidentiality agreement that constitutes an Acceptable the Confidentiality Agreement and (y) substantially contemporaneously with furnishing any such information to such Person, the Company notifies Parent of such action and furnishes Parent a list of such written information provided to such Person and, to the extent such written information has not been previously furnished to Parent and doing so is consistent with applicable Law, copies of such information), and (2B) participate in substantive discussions and negotiations with such Person regarding such Takeover Proposal and, to the extent reasonably required to evaluate a Takeover Proposal, may enter into a customary confidentiality agreement in order to obtain non-public information with respect to such Person (an “Other Confidentiality Agreement”)Superior Proposal. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 6.04(a) by any Representative of the Company shall be deemed to be a breach of this Section 6.04(a) by the Company. The Company shall cease immediately and its Subsidiaries shall use their reasonable best efforts cause to inform their Representatives be terminated any and all existing discussions or negotiations with any parties conducted heretofore with respect to an Acquisition Proposal and promptly request that all confidential information furnished on behalf of the restrictions described in this Section 6.2Company be returned.
Appears in 1 contract
No Solicitation of Transactions. (a) The Except as set forth in this Section 6.3, until the termination of this Agreement in accordance with the terms hereof, the Company shall not, and shall cause its the Company Subsidiaries not to, and shall use its reasonable best efforts to cause not authorize or permit its and its the Company Subsidiaries’ directors, officers, employees, advisors, attorneys, accountants, investment bankers and agents (with respect to any Person, the foregoing Persons are referred to herein as such Person’s “Representatives”) not respective Representatives to, directly or indirectly (i) solicit, initiate, knowingly encourage or knowingly facilitate any inquiry with respect to, Acquisition Proposal or the makingmaking thereof, submission or announcement of, any Takeover Proposal or (ii) engage inenter into, continue or otherwise participate in any substantive discussions or negotiations regarding, or furnish any information to, or otherwise cooperate in any way with, any Third Party or their Representatives that is seeking to make, or has made, any Person Acquisition Proposal, or (iii) waive, terminate, modify or fail to enforce any non-public information provision of any contractual “standstill” or data confidentiality or similar obligation of any Third Party. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any Company Subsidiary or any Representative of the Company or any Company Subsidiary shall be a breach of this Section 6.3 by the Company. The Company immediately shall, and shall cause the Company Subsidiaries and shall instruct each of their respective Representatives immediately to, cease and cause to be terminated any and all discussions or negotiations with any person that may be ongoing with respect to, or take any other action to facilitate or encourage any inquiries or the making of any proposal that constitutes or may would reasonably be expected to lead to, a Takeover Proposalany Acquisition Proposal and request the prompt return or destruction of all confidential information provided to any such person or its Representatives prior to the date of this Agreement and use its commercially reasonable efforts to ensure compliance with such request. Notwithstanding anything to the foregoingcontrary herein, at any time prior to receipt of obtaining the Requisite Required Company Vote, if (i) in response to a bona fide unsolicited written Acquisition Proposal made after the date hereof, that did not result from or arise out of a breach of this Section 6.3, and that the Company Board determines in good faith (after consultation with outside counsel and a financial advisor of nationally recognized reputation) is, or is reasonably likely to lead to, a Superior Proposal, the Company may, subject to compliance with Section 6.3(c), (x) furnish information regarding the Company and the Company Subsidiaries to the person making such Acquisition Proposal (and its Representatives) pursuant to a confidentiality agreement (which shall permit the Company to comply with the terms of Section 6.3(c)) containing confidentiality and other provisions not less restrictive to such Third Party than the provisions of the Confidentiality Agreement are to Parent; provided, however, that all such information has not breached this Section 6.2 in any material respectpreviously been made available to Parent or is made available to Parent prior to, or concurrent with, the time it is provided to such person, and (iiy) participate in discussions or negotiations with the Company receives a bona fide written Takeover person making such Acquisition Proposal from a third party that (and its Representatives) regarding such Acquisition Proposal, but, in connection with the foregoing clauses (x) and (y), only if the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor of nationally recognized reputation) constitutes or may that the failure to take such action would reasonably be expected to lead to be a Superior Proposalbreach of its fiduciary duties under applicable Law, the Company may (1) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person making such Takeover Proposal (provided provided, however, that the Company shall only provide or permit to be provided to such Person any non-public information with respect to the Company or not take any of its Subsidiaries if the actions referred to in the foregoing clauses (x) such Person has executed a confidentiality agreement that constitutes an Acceptable Confidentiality Agreement and (y) substantially contemporaneously with furnishing any such information to such Person, unless the Company notifies shall have notified Parent of in writing, at least two (2) business days prior to taking such action, that it intends to take such action and furnishes Parent a list of such written information provided to such Person and, to the extent such written information has not been previously furnished to Parent and doing so is consistent with applicable Law, copies of such information), and (2) participate in substantive discussions and negotiations with such Person regarding such Takeover Proposal and, to the extent reasonably required to evaluate a Takeover Proposal, may enter into a customary confidentiality agreement in order to obtain non-public information with respect to such Person (an “Other Confidentiality Agreement”). The Company and its Subsidiaries shall use their reasonable best efforts to inform their Representatives of the restrictions described in this Section 6.2basis hereunder therefor.
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