No Solicitations. Prior to the Effective Time, EUA agrees: (a) that neither it nor any of its Subsidiaries shall, and it shall use its best efforts to cause its Representatives (as defined in Section 10.10) not to, knowingly initiate, solicit or encourage, directly or indirectly, any inquiries or any proposal or offer (including, without limitation, any proposal or offer to its Shareholders) with respect to a merger, consolidation or other business combination including EUA or any of its significant Subsidiaries (as defined in Rule 1-02(W) of Regulation S-X promulgated under the Exchange Act) other than EUA Cogenex Corporation (an "EUA Significant Subsidiary"), or any acquisition or similar transaction (including, without limitation, a tender or exchange offer) involving the purchase of (i) all or any significant portion of the assets of EUA and its Subsidiaries taken as a whole, (ii) ten percent or more of the outstanding EUA Shares or (iii) 50% or more of the outstanding shares of the capital stock of any EUA Significant Subsidiary (any such proposal or offer being hereinafter referred to as an "Alternative Proposal"), or engage in any negotiations concerning, or provide any confidential information or data to, or have any other discussions with, any person or group relating to an Alternative Proposal, or otherwise knowingly facilitate any effort or attempt to make or implement an Alternative Proposal other than from XXXX and its affiliates; (b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties with respect to any Alternative Proposal; and (c) that it will notify XXXX immediately if any such inquiries, proposals or offers are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it or any of such persons; provided, however, that, prior to receipt of the EUA Shareholders' Approval, nothing contained in this Section 7.08 shall prohibit the Board of Trustees of EUA from (i) furnishing information to (but only pursuant to a confidentiality agreement in customary form and having terms and conditions no less favorable to EUA than the Confidentiality Agreement (as defined in Section 7.01)) or entering into discussions or negotiations with any person or group that makes an unsolicited Alternative Proposal, if, and only to the extent that, (A) the Board of Trustees of EUA, based upon advice of outside counsel with respect to fiduciary duties, determines in good faith that such action is necessary for the Board of Trustees to act in a manner consistent with its fiduciary duties to Shareholders under applicable law, (B) the Board of Trustees of EUA has reasonably concluded in good faith (after consultation with its financial advisors) that the person or group making such Alternative Proposal will have adequate sources of financing to consummate such Alternative Proposal and that such Alternative Proposal is likely to be more favorable to EUA's shareholders than the Merger, (C) prior to furnishing such information to, or entering into discussions or negotiations with, such person or group, EUA provides written notice to XXXX to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or group, which notice shall identify such person or group and the material terms of the Alternative Proposal in reasonable detail, and (D) EUA keeps XXXX promptly informed of the status and all material information with respect to any such discussions or negotiations; and (ii) to the extent required, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 7.08 shall (x) permit EUA to terminate this Agreement (except as specifically provided in Article IX), (y) permit EUA to enter into any agreement with respect to an Alternative Proposal for so long as this Agreement remains in effect (it being agreed that for so long as this Agreement remains in effect, EUA shall not enter into any agreement with any person or group that provides for, or in any way knowingly facilitates, an Alternative Proposal (other than a confidentiality agreement under the circumstances described above)), or (z) affect any other obligation of EUA under this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (New England Electric System), Agreement and Plan of Merger (New England Electric System)
No Solicitations. Prior to the Effective TimeEach party hereto shall not, EUA agrees: (a) that neither it nor and each such party shall cause its Subsidiaries not to, permit any of its Subsidiaries shallRepresentatives to, and it shall use its best efforts to cause its Representatives (as defined in Section 10.10) such persons not to, knowingly directly or indirectly initiate, solicit or encourage, directly or indirectlytake any action to facilitate the making of, any inquiries offer or proposal which constitutes or is reasonably likely to lead to, any proposal Business Combination Proposal (as defined below), or, in the event of an unsolicited Business Combination Proposal, except to the extent required by their fiduciary duties under applicable law if so advised in a written opinion of outside counsel, engage in negotiations or offer provide any information or data to any person relating to any Business Combination Proposal. Each party hereto shall notify the other party orally and in writing of any such inquiries, offers or proposals (including, without limitation, the terms and conditions of any such proposal and the identity of the person making it), within 24 hours of the receipt thereof, shall keep the other party informed of the status and details of any such inquiry, offer or proposal, and shall give the other party five days' advance notice of any agreement to be entered into with or any information to be supplied to any person making such inquiry, offer or proposal. Each party hereto shall immediately cease and cause to its Shareholders) be terminated all existing discussions and negotiations, if any, with any parties conducted heretofore with respect to any Business Combination Proposal. As used in this SECTION 7.12, "BUSINESS COMBINATION PROPOSAL" shall mean any tender or exchange offer, proposal for a merger, consolidation or other business combination including EUA involving any party to this Agreement or any of its significant Subsidiaries (as defined in Rule 1-02(W) of Regulation S-X promulgated under the Exchange Act) other than EUA Cogenex Corporation (an "EUA Significant Subsidiary")material subsidiaries, or any acquisition proposal or similar transaction offer (includingin each case, without limitationwhether or not in writing and whether or not delivered to the stockholders of a party generally) to acquire in any manner, directly or indirectly, a tender substantial equity interest in or exchange offer) involving the purchase of (i) all or any significant a substantial portion of the assets of EUA any party to this Agreement or any of its material subsidiaries, other than pursuant to the transactions contemplated by this Agreement and its Subsidiaries taken as a whole, (ii) ten percent other than the "LIPA" transaction disclosed in the LILCO SEC Reports. From the date hereof until the termination or more consummation of the outstanding EUA Shares or (iii) 50% or more of the outstanding shares of the capital stock of any EUA Significant Subsidiary (any such proposal or offer being hereinafter referred to as an "Alternative Proposal")transactions contemplated by this Agreement, or neither party shall engage in any negotiations concerningor material discussions with the Long Island Power Authority ("LIPA") or its representatives or agents without prior notification to or the presence of the other party hereto, or and will not provide any confidential information or data to, or have any to LIPA without providing a copy thereof to the other discussions with, any person or group relating to an Alternative Proposal, or otherwise knowingly facilitate any effort or attempt to make or implement an Alternative Proposal other than from XXXX and its affiliates; (b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties with respect to any Alternative Proposal; and (c) that it will notify XXXX immediately if any such inquiries, proposals or offers are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it or any of such persons; provided, however, that, prior to receipt of the EUA Shareholders' Approval, nothing party hereto. Nothing contained in this Section 7.08 herein shall prohibit the Board of Trustees of EUA a party from (itaking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) furnishing information to (but only pursuant to a confidentiality agreement in customary form and having terms and conditions no less favorable to EUA than the Confidentiality Agreement (as defined in Section 7.01)) or entering into discussions or negotiations with any person or group that makes an unsolicited Alternative Proposal, if, and only to the extent that, (A) the Board of Trustees of EUA, based upon advice of outside counsel with respect to fiduciary duties, determines in good faith that such action is necessary for the Board of Trustees to act in a manner consistent with its fiduciary duties to Shareholders under applicable law, (B) the Board of Trustees of EUA has reasonably concluded in good faith (after consultation with its financial advisors) that the person or group making such Alternative Proposal will have adequate sources of financing to consummate such Alternative Proposal and that such Alternative Proposal is likely to be more favorable to EUA's shareholders than the Merger, (C) prior to furnishing such information to, or entering into discussions or negotiations with, such person or group, EUA provides written notice to XXXX to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or group, which notice shall identify such person or group and the material terms of the Alternative Proposal in reasonable detail, and (D) EUA keeps XXXX promptly informed of the status and all material information with respect to any such discussions or negotiations; and (ii) to the extent required, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 7.08 shall (x) permit EUA to terminate this Agreement (except as specifically provided in Article IX), (y) permit EUA to enter into any agreement with respect to an Alternative a Business Combination Proposal for so long as this Agreement remains in effect (it being agreed that for so long as this Agreement remains in effect, EUA shall not enter into any agreement with any person or group that provides for, or in any way knowingly facilitates, an Alternative Proposal (other than by means of a confidentiality agreement under the circumstances described above)), or (z) affect any other obligation of EUA under this Agreementtender offer.
Appears in 2 contracts
Samples: Agreement and Plan (Long Island Lighting Co), Agreement and Plan of Exchange (Brooklyn Union Gas Co)
No Solicitations. Prior to At all times from and after the date hereof until the Effective Time, EUA agrees: each Principal Party covenants and agrees as to itself and its Subsidiaries (a) that neither it nor any of its Subsidiaries or other affiliates shall, and it shall use its best efforts to cause its Representatives (as defined in Section 10.109.11) not to, knowingly initiate, solicit or knowingly encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its Shareholdersshareholders) with respect to a merger, consolidation or other business combination including EUA such Principal Party or any of its significant Subsidiaries (as defined in Rule 1-02(W) of Regulation S-X promulgated under the Exchange Act) other than EUA Cogenex Corporation (an "EUA Significant Subsidiary"), or any acquisition or similar transaction (including, without limitation, a tender or exchange offer) involving the purchase of (i) all or any significant portion of the assets of EUA such Principal Party and its Subsidiaries taken as a whole, (ii) ten percent 25% or more of the outstanding EUA Shares shares of such Principal Party's common stock or (iii) 5025% or more of the outstanding shares of the capital stock of any EUA Significant Subsidiary of such Principal Party (any such proposal or offer being hereinafter referred to as an "Alternative Proposal"), or engage in any negotiations concerning, or provide any confidential information or data to, or have any other discussions with, any person or group relating to an Alternative ProposalProposal (excluding the transactions contemplated by this Agreement), or otherwise knowingly facilitate any effort or attempt to make or implement an Alternative Proposal other than from XXXX and its affiliatesProposal; (b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties with respect to any Alternative Proposalof the foregoing, and it will take the necessary steps to inform such parties of its obligations under this Section; and (c) that it will notify XXXX the other Principal Party immediately if any such inquiries, proposals or offers offers, written or oral, are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it or any of such persons; provided, however, that, prior to receipt of the EUA Shareholders' Approval, that nothing contained in this Section 7.08 5.02 shall prohibit the Board of Trustees Directors of EUA either Principal Party or its Representatives from (i) furnishing information to (but only pursuant to a confidentiality agreement in customary form and having terms and conditions no less favorable to EUA such Principal Party than the Confidentiality Agreement (as defined in Section 7.01)Agreement, a copy of which shall be provided promptly to the other Principal Party) or entering into discussions or negotiations with any person or group that makes an unsolicited bona fide Alternative Proposal, if, and only to the extent that, prior to receipt of the Inprise Shareholders' Approval (if such Principal Party is Inprise) or the Corel Shareholders' Approval (if such Principal Party is Corel), (A) the Board of Trustees Directors of EUAsuch Principal Party, (i) based upon the advice of outside counsel with respect to fiduciary dutiescounsel, determines in good faith and in its reasonable judgment that such action is necessary required for the Board of Trustees Directors to act in a manner consistent comply with its fiduciary duties to Shareholders under shareholders imposed by applicable law, and (Bii) based on the Board advice of Trustees of EUA has reasonably concluded such Principal Party's financial advisor, determines in good faith (after consultation with and in its financial advisors) that the person or group making such Alternative Proposal will have adequate sources of financing to consummate such Alternative Proposal and reasonable judgment that such Alternative Proposal is likely to be more favorable to EUA's shareholders than the Mergerresult in a Superior Proposal (as defined herein), (CB) three business days prior to furnishing such information to, or entering into discussions or negotiations with, such person or group, EUA such Principal Party provides written notice to XXXX the other Principal Party to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or group, which notice shall identify such person or group and the material terms of the Alternative Proposal in reasonable detail, and (DC) EUA such Principal Party keeps XXXX promptly the other Principal Party informed of the status and all material information with respect to any such discussions or negotiations; and (ii) to the extent required, complying with Rule 14e-2 Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act with regard to an Alternative ProposalProposal , or (iii) without limiting the right of the other Principal Party pursuant to Article VIII, making any other disclosure to such Principal Party's stockholders if such Principal Party's Board of Directors determines in good faith, based upon advice of its outside legal counsel, that the failure to make any such disclosure would violate the Board's fiduciary duties under applicable law. Nothing in this Section 7.08 5.02 shall (x) permit EUA any party to terminate this Agreement (except as specifically provided in Article IXVIII), (y) permit EUA any party to enter into any agreement with respect to an Alternative Proposal for so long as this Agreement remains in effect (it being agreed that for so long as this Agreement remains in effect, EUA no party shall not enter into any agreement with any person or group that provides for, or in any way knowingly facilitates, an Alternative Proposal (other than a confidentiality agreement under the circumstances described above)), or (z) affect any other obligation of EUA any party under this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Inprise Corp), Merger Agreement (Inprise Corp)
No Solicitations. Prior to At all times from and after the date hereof until the Effective Time, EUA agrees: SoftQuad covenants and agrees as to itself and its Subsidiaries (a) that neither it nor any of its Subsidiaries or other affiliates shall, directly or indirectly, and it shall use its best efforts to cause its Representatives (as defined in Section 10.109.18) not to, knowingly initiate, solicit or knowingly encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its Shareholdersshareholders) with respect to a merger, consolidation or other business combination including EUA SoftQuad or any of its significant Subsidiaries (as defined in Rule 1-02(W) of Regulation S-X promulgated under the Exchange Act) other than EUA Cogenex Corporation (an "EUA Significant Subsidiary"), or any acquisition or similar transaction (including, without limitation, a tender or exchange offer) involving the purchase of (i) all or any significant portion of the assets of EUA SoftQuad and its Subsidiaries taken as a whole, (ii) ten percent 20% or more of the outstanding EUA Shares shares of SoftQuad's Common Stock or (iii) 5020% or more of the outstanding shares of the capital stock of any EUA Significant Subsidiary of SoftQuad (any such proposal or offer being hereinafter referred to as an "Alternative Proposal"), or engage in any negotiations concerning, or provide any confidential information or data to, or have any other discussions with, any person or group relating to an Alternative ProposalProposal (excluding the transactions contemplated by this Agreement), or otherwise knowingly facilitate any effort or attempt to make or implement an Alternative Proposal other than from XXXX and its affiliatesProposal; (b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties with respect to any Alternative Proposalof the foregoing, and it will take the necessary steps to inform such parties of its obligations under this Section; and (c) that it will notify XXXX Corel immediately if any such inquiries, proposals or offers offers, written or oral, are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it or any of such persons; provided, however, that, prior to receipt of the EUA Shareholders' Approval, that nothing contained in this Section 7.08 5.02 shall prohibit the Board of Trustees Directors of EUA SoftQuad or its Representatives from (i) furnishing information to (but only pursuant to a confidentiality agreement in customary form and having terms and conditions no less favorable to EUA SoftQuad than the Confidentiality Agreement (as defined in Section 7.01)Agreement, a copy of which shall be provided promptly to Corel) or entering into discussions or negotiations with any person or group that makes an unsolicited bona fide Alternative Proposal, if, and only to the extent that, prior to receipt of the SoftQuad Stockholders' Approval, (A) based upon the advice of outside counsel, the Board of Trustees Directors of EUASoftQuad determines in good faith and in its reasonable judgment that such action is likely required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by applicable law, and (B) based upon on the advice of outside counsel with respect to fiduciary dutiesSoftQuad's financial advisor, determines in good faith that such action is necessary for the Board of Trustees to act and in a manner consistent with its fiduciary duties to Shareholders under applicable law, (B) the Board of Trustees of EUA has reasonably concluded in good faith (after consultation with its financial advisors) that the person or group making such Alternative Proposal will have adequate sources of financing to consummate such Alternative Proposal and reasonable judgment that such Alternative Proposal is reasonably likely to be more favorable to EUA's shareholders than the Mergerresult in a Superior Proposal (as defined herein), (CB) three business days prior to furnishing such information to, or entering into discussions or negotiations with, such person or groupgroup and proposed terms of the transaction, EUA SoftQuad provides written notice to XXXX Corel to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or group, which notice shall identify such person or group and the material proposed terms of the Alternative Proposal transaction in reasonable detail, and (DC) EUA SoftQuad keeps XXXX promptly informed Corel informed, to the extent reasonably practical, of the status and all material information with respect to any such discussions or negotiationsnegotiations and information furnished to the other party; and (ii) to the extent required, complying with Rule 14e-2 Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 7.08 5.02 shall (x) permit EUA SoftQuad to terminate this Agreement (except as specifically provided in Article IXVIII), (y) permit EUA any party to enter into any agreement with respect to an Alternative Proposal for so long as this Agreement remains in effect (it being agreed that for so long as this Agreement remains in effect, EUA SoftQuad shall not enter into any agreement with any person or group that provides for, or in any way knowingly facilitates, an Alternative Proposal (other than a confidentiality agreement under the circumstances described above)), or (z) affect effect any other obligation of EUA any party under this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Corel Corp)
No Solicitations. Prior to At all times from and after the date hereof until the Effective Time, EUA agrees: Micrografx covenants and agrees as to itself and its Subsidiaries (a) that neither it nor any of its Subsidiaries shall, directly or indirectly, and it shall use its best efforts to cause its Representatives (as defined in Section 10.109.18) not to, knowingly initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its Shareholdersshareholders) with respect to a merger, consolidation or other business combination including EUA Micrografx or any of its significant Subsidiaries (as defined in Rule 1-02(W) of Regulation S-X promulgated under the Exchange Act) other than EUA Cogenex Corporation (an "EUA Significant Subsidiary"), or any acquisition or similar transaction (including, without limitation, a tender or exchange offer) involving the purchase of (i) all or any significant portion of the assets of EUA Micrografx and its Subsidiaries taken as a whole, (ii) ten percent 20% or more of the outstanding EUA Shares shares of Micrografx's Common Stock or (iii) 5020% or more of the outstanding shares of the capital stock of any EUA Significant Subsidiary of Micrografx (any such proposal or offer being hereinafter referred to as an "Alternative Proposal"), or engage in any negotiations concerning, or provide any confidential information or data to, or have any other discussions with, any person or group relating to an Alternative ProposalProposal (excluding the transactions contemplated by this Agreement), or otherwise knowingly facilitate any effort or attempt to make or implement an Alternative Proposal other than from XXXX and its affiliatesProposal; (b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties with respect to any Alternative Proposalof the foregoing, and it will take the necessary steps to inform such parties of its obligations under this Section; and (c) that it will notify XXXX Corel immediately if any such inquiries, proposals or offers offers, written or oral, are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it or any of such persons; provided, however, that, prior to receipt of the EUA Shareholders' Approval, that nothing contained in this Section 7.08 5.02 shall prohibit the Board of Trustees Directors of EUA Micrografx or its Representatives from (i) furnishing information to (but only pursuant to a confidentiality agreement in customary form and having terms and conditions no less favorable to EUA Micrografx than the Confidentiality Agreement (as defined in Section 7.01)Agreement, a copy of which shall be provided promptly to Corel) or entering into discussions or negotiations with any person or group that makes an unsolicited bona fide Alternative Proposal, if, and only to the extent that, prior to receipt of the Micrografx Shareholders' Approval, (Ai) the Board of Trustees of EUA, based upon the advice of outside counsel with respect to fiduciary dutiescounsel, determines in good faith and in its reasonable judgment that such action is necessary likely required for the Board of Trustees Directors to act in a manner consistent comply with its fiduciary duties to Shareholders under shareholders imposed by applicable law, and (Bii) based on the Board advice of Trustees of EUA has reasonably concluded Micrografx's financial advisor, determines in good faith (after consultation with and in its financial advisors) that the person or group making such Alternative Proposal will have adequate sources of financing to consummate such Alternative Proposal and reasonable judgment that such Alternative Proposal is reasonably likely to be more favorable to EUA's shareholders than the Mergerresult in a Superior Proposal (as defined herein), (CB) three business days prior to furnishing such information to, or entering into discussions or negotiations with, such person or groupgroup and proposed terms of the transaction, EUA Micrografx provides written notice to XXXX Corel to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or group, which notice shall identify such person or group and the material proposed terms of the Alternative Proposal transaction in reasonable detail, and (DC) EUA Micrografx keeps XXXX promptly Corel informed of the status and all material information with respect to any such discussions or negotiationsnegotiations and information furnished to the other party; and (ii) to the extent required, complying with Rule 14e-2 Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 7.08 5.02 shall (x) permit EUA Micrografx to terminate this Agreement (except as specifically provided in Article IXVIII), (y) permit EUA any party to enter into any agreement with respect to an Alternative Proposal for so long as this Agreement remains in effect (it being agreed that for so long as this Agreement remains in effect, EUA Micrografx shall not enter into any agreement with any person or group that provides for, or in any way knowingly facilitates, an Alternative Proposal (other than a confidentiality agreement under the circumstances described above)), or (z) affect any other obligation of EUA any party under this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Corel Corp)
No Solicitations. Prior (a) Except as disclosed in Section 5.07 of the Company Disclosure Letter, prior to the Effective Time, EUA agrees: the Company agrees (ai) that neither it nor any of its Subsidiaries or other affiliates shall, and it shall use its best efforts to cause its their respective Representatives (as defined in Section 10.109.12) not to, knowingly initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its Shareholdersstockholders) with respect to a merger, consolidation or other business combination including EUA the Company or any of its significant Subsidiaries (as defined in Rule 1-02(W) of Regulation S-X promulgated under the Exchange Act) other than EUA Cogenex Corporation (an "EUA Significant Subsidiary"), or any acquisition or similar transaction (including, without limitation, a tender or exchange offer) involving the purchase of (iA) all or any significant portion of the assets of EUA the Company and its Subsidiaries taken as a whole, (iiB) ten percent 5% or more of the outstanding EUA Shares shares of Company Common Stock or (iiiC) 505% or more of the outstanding shares of the capital stock of any EUA Significant Subsidiary of the Company (any such proposal or offer being hereinafter referred to as an "Alternative Proposal"), or engage in any negotiations concerning, or provide any confidential information or data to, or have any other discussions with, any person or group relating to an Alternative ProposalProposal (excluding the transactions contemplated by this Agreement), or otherwise knowingly facilitate any effort or attempt to make or implement an Alternative Proposal other than from XXXX and its affiliatesProposal; (bii) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties with respect to any Alternative Proposalof the foregoing, and it will take the necessary steps to inform such parties of its obligations under this Section; and (ciii) that it will notify XXXX immediately Parent promptly if any such inquiries, proposals or offers are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it or any of such persons; provided, however, that, prior to receipt of the EUA Shareholders' Approval, that nothing contained in this Section 7.08 5.07(a) shall prohibit the Board of Trustees Directors of EUA the Company from (i) furnishing information to (but only pursuant to a confidentiality agreement in customary form and having terms and conditions no less favorable to EUA the Company than the Confidentiality Agreement (as defined in Section 7.016.01)) or entering into discussions or negotiations with any person or group that makes an unsolicited bona fide Alternative Proposal, if, and only to the extent that, prior to receipt of the Company Stockholders' Approval, (A) the Board of Trustees Directors of EUAthe Company, based upon the advice of outside counsel with respect to fiduciary dutiescounsel, determines in good faith that a failure to perform such action is necessary for the Board of Trustees could reasonably be expected to act result in a manner consistent with breach of its fiduciary duties to Shareholders under applicable stockholders imposed by law, (B) the Board of Trustees of EUA Directors has reasonably concluded in good faith (after consultation with its financial advisors) that the person or group making such Alternative Proposal will have adequate sources of financing to consummate such Alternative Proposal and Proposal, (C) the Board of Directors has reasonably concluded in good faith that such Alternative Proposal is likely to be more favorable to EUAthe Company's shareholders stockholders than the Merger, (CD) prior to furnishing such information to, or entering into discussions or negotiations with, such person or group, EUA the Company provides written notice to XXXX Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or group, which notice shall identify such person or group and the material terms of the Alternative Proposal in reasonable detail, and (DE) EUA the Company keeps XXXX promptly Parent appropriately informed of the status and all material information with respect to of any such discussions or negotiations; and (ii) to the extent required, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 7.08 5.07 shall (x) permit EUA the Company to terminate this Agreement (except as specifically provided in Article IXVIII), (y) permit EUA the Company to enter into any agreement with respect to an Alternative Proposal for so long as this Agreement remains in effect (it being agreed that for so long as this Agreement remains in effect, EUA the Company shall not enter into any agreement with any person or group that provides for, or in any way knowingly facilitates, an Alternative Proposal (other than a confidentiality agreement under the circumstances described above)), or (z) affect any other obligation of EUA the Company under this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger
No Solicitations. Prior to the Effective Time, EUA agrees: (a) that neither it nor any of its Subsidiaries shall, and it shall use its best efforts to cause its Representatives (as defined in Section 10.10) not to, knowingly initiate, solicit or encourage, directly or indirectly, any inquiries or any proposal or offer (including, without limitation, any proposal or offer to its Shareholders) with respect to a merger, consolidation or other business combination including EUA or any of its significant Subsidiaries (as defined in Rule 1-02(W) of Regulation S-X promulgated under the Exchange Act) other than EUA Cogenex Corporation (an "EUA Significant Subsidiary"), or any acquisition or similar transaction (including, without limitation, a tender or exchange offer) involving the purchase of (i) all or any significant portion of the assets of EUA and its Subsidiaries taken as a whole, (ii) ten percent or more of the outstanding EUA Shares or (iii) 50% or more mo re of the outstanding shares of the capital stock of any EUA Significant Subsidiary (any such proposal or offer being hereinafter referred to as an "Alternative Proposal"), or engage in any negotiations concerning, or provide any confidential information or data to, or have any other discussions with, any person or group relating to an Alternative Proposal, or otherwise knowingly facilitate any effort or attempt to make or implement an Alternative Proposal other than from XXXX NEES and its affiliatesaffiliatxx ; (b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties with respect to any Alternative Proposal; and (c) that it will notify XXXX NEES immediately if any such axx xuch inquiries, proposals or offers are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it or any of such persons; provided, however, that, prior to receipt of the EUA Shareholders' Approval, nothing contained in this Section 7.08 shall prohibit the Board of Trustees of EUA from (i) furnishing information to (but only pursuant to a confidentiality agreement in customary form and having terms and conditions no less favorable to EUA than the Confidentiality Agreement (as defined in Section 7.01)) or entering into discussions or negotiations with any person or group that makes an unsolicited Alternative Proposal, if, and only to the extent that, (A) the Board of Trustees of EUA, based upon advice of outside counsel with respect to fiduciary duties, determines in good faith that such action is necessary for the Board of Trustees to act in a manner consistent with its fiduciary duties to Shareholders under applicable law, (B) the Board of Trustees of EUA has reasonably concluded in good faith (after consultation with its financial advisors) that the person or group making such Alternative Proposal will have adequate sources of financing to consummate such Alternative Proposal and that such Alternative Proposal is likely to be more favorable to EUA's shareholders than the Merger, (C) prior to furnishing such information to, or entering into discussions or negotiations with, such person or group, EUA provides written notice to XXXX NEES to the effect that it thxx xt is furnishing information to, or entering into discussions or negotiations with, such person or group, which notice shall identify such person or group and the material terms of the Alternative Proposal in reasonable inreasonable detail, and (D) EUA keeps XXXX NEES promptly informed of informex xx the status and all material information with respect to any such discussions or negotiations; and (ii) to the extent required, complying with Rule 14e-2 promulgated under the Exchange Act with wit h regard to an Alternative Proposal. Nothing in this Section 7.08 shall (x) permit EUA to terminate this Agreement (except as specifically provided in Article IX), (y) permit EUA to enter into any agreement with respect to an Alternative Proposal for so long as this Agreement remains in effect (it being agreed that for so long as this Agreement remains in effect, EUA shall not enter into any agreement with any person or group that provides for, or in any way knowingly facilitates, an Alternative Proposal (other than a confidentiality agreement under the circumstances described above)), or (z) affect any other obligation of EUA under this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Eastern Utilities Associates)
No Solicitations. Prior to the Effective Time, EUA agrees: the Company agrees (a) that neither it nor any of its Subsidiaries or other affiliates shall, and it shall use its best efforts to cause its their respective Representatives (as defined in Section 10.10) not to, knowingly initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its Shareholdersstockholders) with respect to a merger, consolidation or other business combination including EUA the Company or any of its significant Subsidiaries (as defined in Rule 1-02(W) of Regulation S-X promulgated under the Exchange Act) other than EUA Cogenex Corporation (an "EUA Significant Subsidiary"), or any acquisition or similar transaction (including, without limitation, a tender or exchange offer) involving the purchase of (i) all or any significant portion of the assets of EUA the Company and its Subsidiaries taken as a whole, (ii) ten percent 20% or more of the outstanding EUA Shares shares of Company Common Stock or (iii) 5020% or more of the outstanding shares of the capital stock of any EUA Significant Subsidiary of the Company (any such proposal or offer being hereinafter referred to as an "Alternative Proposal"), or engage in any negotiations concerning, or provide any confidential information or data to, or have any other discussions with, any person or group relating to an Alternative ProposalProposal (excluding the transactions contemplated by this Agreement), or otherwise knowingly facilitate any effort or attempt to make or implement an Alternative Proposal other than from XXXX and its affiliatesProposal; (b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties with respect to any Alternative Proposalof the foregoing, and it will take the necessary steps to inform such parties of its obligations under this Section; and (c) that it will notify XXXX Parent immediately if any such inquiries, proposals or offers are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it or any of such persons; provided, however, that, prior to receipt of the EUA Shareholders' Approval, that nothing contained in this Section 7.08 5.04 shall prohibit the Board of Trustees Directors of EUA the Company from (i) furnishing information to (but only pursuant to a confidentiality agreement in customary form and having terms and conditions no less favorable to EUA than the Confidentiality Agreement (as defined in Section 7.01)form) or entering into discussions or negotiations with any person or group that makes an unsolicited bona fide Alternative Proposal, if, and only to the extent that, (A) the Board of Trustees Directors of EUAthe Company, based upon the advice of outside counsel with respect to fiduciary dutiescounsel, determines in good faith that such action is necessary required for the Board of Trustees Directors to act in a manner consistent comply with its fiduciary duties to Shareholders under applicable stockholders imposed by law, (B) the Board of Trustees of EUA has reasonably concluded in good faith (after consultation with its financial advisors) that the person or group making such Alternative Proposal will have adequate sources of financing to consummate such Alternative Proposal and that such Alternative Proposal is likely to be more favorable to EUA's shareholders than the Merger, (C) prior to furnishing such information to, or entering into discussions or negotiations with, such person or group, EUA the Company provides written notice to XXXX Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or group, which notice shall identify such person or group and the material terms of the Alternative Proposal in reasonable detail, and (DC) EUA the Company keeps XXXX promptly Parent informed of the status and all material information with respect to any such discussions or negotiations; and (ii) to the extent required, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 7.08 5.04 shall (x) permit EUA the Company to terminate this Agreement (except as specifically provided in Article IXVIII), (y) permit EUA the Company to enter into any agreement with respect to an Alternative Proposal for so long as this Agreement remains in effect (it being agreed that for so long as this Agreement remains in effect, EUA the Company shall not enter into any agreement with any person or group that provides for, or in any way knowingly facilitates, an Alternative Proposal (other than a confidentiality agreement under the circumstances described above)), or (z) affect any other obligation of EUA the Company under this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Anthracite Capital Inc)
No Solicitations. Prior to the Effective Time, EUA agrees: the Company agrees (a) that neither it nor any of its Subsidiaries shall, and it shall use its best efforts to cause its their respective Representatives (as defined in Section 10.10) not to, knowingly initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its Shareholdersstockholders) with respect to a merger, consolidation or other business combination including EUA the Company or any of its significant Subsidiaries (as defined in Rule 1-02(W) of Regulation S-X promulgated under the Exchange Act) other than EUA Cogenex Corporation (an "EUA Significant Subsidiary"), or any acquisition or similar transaction (including, without limitation, a tender or exchange offer) involving the purchase of (i) all or any significant portion of the assets of EUA the Company and its Subsidiaries taken as a whole, (ii) ten percent 20% or more of the outstanding EUA Shares shares of Company Common Stock or (iii) 5020% or more of the outstanding shares of the capital stock of any EUA Significant Subsidiary of the Company (any such proposal or offer being hereinafter referred to as an "Alternative Proposal"), or engage in any negotiations concerning, or provide any confidential information or data to, or have any other discussions with, any person or group relating to an Alternative ProposalProposal (excluding the transactions contemplated by this Agreement), or otherwise knowingly facilitate any effort or attempt to make or implement an Alternative Proposal other than from XXXX and its affiliatesProposal; (b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties with respect to any Alternative Proposal; and (c) that it will notify XXXX Parent immediately if any such inquiries, proposals or offers are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it or any such person or group; and (c) that it will, prior to accepting any Alternative Proposal, (i) receive a determination from an independent financial advisor that such Alternative Proposal is more favorable (from a financial point of view) to the Company's stockholders than the Merger, (ii) determine in the exercise of its fiduciary obligations under applicable law as advised by independent counsel that such Alternative Proposal is more favorable to the Company's stockholders than the Merger, and (iii) deliver to Parent a definitive agreement of such personsAlternative Proposal or a description of the material terms thereof and, except as would violate a fiduciary or contractual obligation, a copy of any information provided by such person or group, including the identity of such person or group, and give Parent at least three (3) days to offer a counterproposal prior to executing such definitive agreement; provided, however, that, prior to receipt of the EUA Shareholders' Approval, nothing contained in this Section 7.08 shall prohibit the Board of Trustees of EUA from (i) furnishing information to (but only pursuant to a confidentiality agreement in customary form and having terms and conditions no less favorable to EUA than the Confidentiality Agreement (as defined in Section 7.01)) or entering into discussions or negotiations with any person or group that makes an unsolicited Alternative Proposal, if, and only to the extent that, (A) the Board of Trustees of EUA, based upon advice of outside counsel with respect to fiduciary duties, determines in good faith that such action is necessary for the Board of Trustees to act in a manner consistent with its fiduciary duties to Shareholders under applicable law, (B) the Board of Trustees of EUA has reasonably concluded in good faith (after consultation with its financial advisors) that the person or group making such Alternative Proposal will have adequate sources of financing to consummate such Alternative Proposal and that such Alternative Proposal is likely to be more favorable to EUA's shareholders than the Merger, (C) prior to furnishing such information to, or entering into discussions or negotiations with, such person or group, EUA provides written notice to XXXX to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or group, which notice shall identify such person or group and the material terms of the Alternative Proposal in reasonable detail, and (D) EUA keeps XXXX promptly informed of the status and all material information with respect to any such discussions or negotiations; and (ii) to the extent required, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 7.08 shall (x) permit EUA to terminate this Agreement (except as specifically provided in Article IX), (y) permit EUA to enter into any agreement with respect to an Alternative Proposal for so long as this Agreement remains in effect (it being agreed that for so long as this Agreement remains in effect, EUA shall not enter into any agreement with any person or group that provides for, or in any way knowingly facilitates, an Alternative Proposal (other than a confidentiality agreement under the circumstances described above)), or (z) affect any other obligation of EUA under this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Ahi Healthcare Systems Inc)
No Solicitations. Prior to the Effective Time, EUA agrees: (a) that neither it Neither the Company nor any of its Subsidiaries shall, or Affiliates shall (and it the Company shall use its best efforts to cause its Representatives officers, directors, employees, representatives and agents, including, but not limited to, investment bankers, attorneys and accountants (as defined in Section 10.10) collectively, "Representatives"), not to, knowingly initiate, solicit or encourage), directly or indirectly, any inquiries encourage, solicit, participate in or any proposal initiate discussions or offer (including, without limitation, any proposal or offer to its Shareholders) with respect to a merger, consolidation or other business combination including EUA or any of its significant Subsidiaries (as defined in Rule 1-02(W) of Regulation S-X promulgated under the Exchange Act) other than EUA Cogenex Corporation (an "EUA Significant Subsidiary"), or any acquisition or similar transaction (including, without limitation, a tender or exchange offer) involving the purchase of (i) all or any significant portion of the assets of EUA and its Subsidiaries taken as a whole, (ii) ten percent or more of the outstanding EUA Shares or (iii) 50% or more of the outstanding shares of the capital stock of any EUA Significant Subsidiary (any such proposal or offer being hereinafter referred to as an "Alternative Proposal"), or engage in any negotiations concerningwith, or provide any confidential information or data to, any corporation, partnership, person or have any other discussions withentity or group (other than Parent, any person of its Affiliates or group relating to an Alternative ProposalRepresentatives) concerning any merger, consolidation, tender offer, exchange offer, sale of a material portion or product line of the assets and business of the Xxxxxx Products Division and/or the CT Film Division (whether in one or more transactions), sale of shares of capital stock or debt securities, restructuring, recapitalization, or otherwise knowingly facilitate similar transactions involving the Company or any effort Subsidiary, division or attempt to make operating or implement principal business unit of the Company (whether in one or more transactions) (an Alternative Proposal other than from XXXX and its affiliates; (b) "Acquisition Proposal"). The Company further agrees that it will, and will cause its Representatives to, immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Alternative Proposal; of the foregoing. Notwithstanding the foregoing, the Company may, directly or indirectly, provide access and furnish information concerning its business, properties or assets to any corporation, partnership, person or other entity or group (a "Third Party Bidder") pursuant to appropriate confidentiality agreements, and may negotiate and participate in discussions and negotiations with such a Third Party Bidder concerning a Superior Proposal (as hereinafter defined) (i) if such Third Party Bidder without any solicitation, initiation, encouragement, discussion or negotiation, directly or indirectly, by or with the Company or its Representatives, has submitted a bona fide written proposal to the Board of Directors of the Company relating to any such transaction, (ii) if, in the opinion of the Board of Directors of the Company, after receipt of advice from independent legal counsel to the Company, the failure to provide such information or access or to engage in such discussions or negotiations would result in a breach of their fiduciary duties to the Company's stockholders under applicable law and (ciii) that it will notify XXXX immediately if any such inquiries, proposals or offers are received by, any Third Party Bidder executes a confidentiality agreement in reasonably customary form; in such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it or any of such persons; provided, however, that, prior to receipt of the EUA Shareholders' Approvalcase, nothing contained in this Section 7.08 5.2 shall prohibit the Company or its Board of Trustees of EUA Directors from (i) furnishing information to (but only pursuant to a confidentiality agreement in customary form taking and having terms and conditions no less favorable to EUA than the Confidentiality Agreement (as defined in Section 7.01)) or entering into discussions or negotiations with any person or group that makes an unsolicited Alternative Proposal, if, and only disclosing to the extent that, (A) the Board of Trustees of EUA, based upon advice of outside counsel Company's stockholders a position with respect to fiduciary duties, determines in good faith that such action is necessary for the Board of Trustees a tender offer by a third-party pursuant to act in a manner consistent with its fiduciary duties to Shareholders under applicable law, (BRules 14d-9 and 14e-2(a) the Board of Trustees of EUA has reasonably concluded in good faith (after consultation with its financial advisors) that the person or group making such Alternative Proposal will have adequate sources of financing to consummate such Alternative Proposal and that such Alternative Proposal is likely to be more favorable to EUA's shareholders than the Merger, (C) prior to furnishing such information to, or entering into discussions or negotiations with, such person or group, EUA provides written notice to XXXX to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or group, which notice shall identify such person or group and the material terms of the Alternative Proposal in reasonable detail, and (D) EUA keeps XXXX promptly informed of the status and all material information with respect to any such discussions or negotiations; and (ii) to the extent required, complying with Rule 14e-2 promulgated under the Exchange Act or from making such disclosure to the Company's stockholders which, in the judgment of the Board of Directors with regard to an Alternative Proposal. Nothing in this Section 7.08 shall (x) permit EUA to terminate this Agreement (except as specifically provided in Article IX)the advice of independent legal counsel, (y) permit EUA to enter into any agreement with respect to an Alternative Proposal for so long as this Agreement remains in effect (it being agreed that for so long as this Agreement remains in effect, EUA shall not enter into any agreement with any person or group that provides for, or in any way knowingly facilitates, an Alternative Proposal (other than a confidentiality agreement may be required under the circumstances described above)), or (z) affect any other obligation of EUA under this Agreementapplicable law.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Huntsman Polymers Corp)
No Solicitations. Prior to the Effective Time, EUA agrees: (a) that neither it nor any of its Subsidiaries shall, and it shall use its best efforts to cause its Representatives (as defined in Section 10.10) not to, knowingly initiate, solicit or encourage, directly or indirectly, any inquiries or any proposal or offer (including, without limitation, any proposal or offer to its Shareholders) with respect to a merger, consolidation or other business combination including EUA or any of its significant Subsidiaries (as defined in Rule 1-02(W) of Regulation S-X promulgated under the Exchange Act) other than EUA Cogenex Corporation (an "EUA Significant Subsidiary"), or any acquisition or similar transaction (including, without limitation, a tender or exchange offer) involving the purchase of (i) all or any significant portion of the assets of EUA and its Subsidiaries taken as a whole, (ii) ten percent or more of the outstanding EUA Shares or (iii) 50% or more mo re of the outstanding shares of the capital stock of any EUA Significant Subsidiary (any such proposal or offer being hereinafter referred to as an "Alternative Proposal"), or engage in any negotiations concerning, or provide any confidential information or data to, or have any other discussions with, any person or group relating to an Alternative Proposal, or otherwise knowingly facilitate any effort or attempt to make or implement an Alternative Proposal other than from XXXX NEES and its affiliatesaffiliatxx ; (b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties with respect to any Alternative Proposal; and (c) that it will notify XXXX NEES immediately if any such axx xuch inquiries, proposals or offers are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it or any of such persons; provided, however, that, prior to receipt of the EUA Shareholders' Approval, nothing contained in this Section 7.08 shall prohibit the Board of Trustees of EUA from (i) furnishing information to (but only pursuant to a confidentiality agreement in customary form and having terms and conditions no less favorable to EUA than the Confidentiality Agreement (as defined in Section 7.01)) or entering into discussions or negotiations with any person or group that makes an unsolicited Alternative Proposal, if, and only to the extent that, (A) the Board of Trustees of EUA, based upon advice of outside counsel with respect to fiduciary duties, determines in good faith that such action is necessary for the Board of Trustees to act in a manner consistent with its fiduciary duties to Shareholders under applicable law, (B) the Board of Trustees of EUA has reasonably concluded in good faith (after consultation with its financial advisors) that the person or group making such Alternative Proposal will have adequate sources of financing to consummate such Alternative Proposal and that such Alternative Proposal is likely to be more favorable to EUA's shareholders than the Merger, (C) prior to furnishing such information to, or entering into discussions or negotiations with, such person or group, EUA provides written notice to XXXX NEES to the effect that it thxx xt is furnishing information to, or entering into discussions or negotiations with, such person or group, which notice shall identify such person or group and the material terms of the Alternative Proposal in reasonable detail, and (D) EUA keeps XXXX NEES promptly informed of informex xx the status and all material information with respect to any such discussions or negotiations; and (ii) to the extent required, complying with Rule 14e-2 promulgated under the Exchange Act with wit h regard to an Alternative Proposal. Nothing in this Section 7.08 shall (x) permit EUA to terminate this Agreement (except as specifically provided in Article IX), (y) permit EUA to enter into any agreement with respect to an Alternative Proposal for so long as this Agreement remains in effect (it being agreed that for so long as this Agreement remains in effect, EUA shall not enter into any agreement with any person or group that provides for, or in any way knowingly facilitates, an Alternative Proposal (other than a confidentiality agreement under the circumstances described above)), or (z) affect any other obligation of EUA under this Agreement.
Appears in 1 contract
No Solicitations. Prior (a) Except as disclosed in Section 5.07 of the Company Disclosure Letter, prior to the Effective Time, EUA agrees: the Company agrees (ai) that neither it nor any of its Subsidiaries or other affiliates shall, and it shall use its best efforts to cause its their respective Representatives (as defined in Section 10.109.12) not to, knowingly initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its Shareholdersstockholders) with respect to a merger, consolidation or other business combination including EUA the Company or any of its significant Subsidiaries (as defined in Rule 1-02(W) of Regulation S-X promulgated under the Exchange Act) other than EUA Cogenex Corporation (an "EUA Significant Subsidiary"), or any acquisition or similar transaction (including, without limitation, a tender or exchange offer) involving the purchase of (iA) all or any significant portion of the assets of EUA the Company and its Subsidiaries taken as a whole, (iiB) ten percent 5% or more of the outstanding EUA Shares shares of Company Common Stock or (iiiC) 505% or more of the outstanding shares of the capital stock of any EUA Significant Subsidiary of the Company (any such proposal or offer being hereinafter referred to as an "Alternative Proposal"), or engage in any negotiations concerning, or provide any confidential information or data to, or have any other discussions with, any person or group relating to an Alternative ProposalProposal (excluding the transactions contemplated by this Agreement), or otherwise knowingly facilitate any effort or attempt to make or implement an Alternative Proposal other than from XXXX and its affiliatesProposal; (bii) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties with respect to any Alternative Proposalof the foregoing, and it will take the necessary steps to inform such parties of its obligations under this Section; and (ciii) that it will notify XXXX immediately ScottishPower or HoldCo promptly if any such inquiries, proposals or offers are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it or any of such persons; provided, however, that, prior to receipt of the EUA Shareholders' Approval, that nothing contained in this Section 7.08 5.07(a) shall prohibit the Board of Trustees Directors of EUA the Company from (i) furnishing information to (but only pursuant to a confidentiality agreement in customary form and having terms and conditions no less favorable to EUA the Company than the Confidentiality Agreement (as defined in Section 7.016.01)) or entering into discussions or negotiations with any person or group that makes an unsolicited bona fide Alternative Proposal, if, and only to the extent that, prior to receipt of the Company Stockholders' Approval, (A) the Board of Trustees Directors of EUAthe Company, based upon the advice of outside counsel with respect to fiduciary dutiescounsel, determines in good faith that a failure to perform such action is necessary for the Board of Trustees could reasonably be expected to act result in a manner consistent with breach of its fiduciary duties to Shareholders under applicable stockholders imposed by law, (B) the Board of Trustees of EUA Directors has reasonably concluded in good faith (after consultation with its financial advisors) that the person or group making such Alternative Proposal will have adequate sources of financing to consummate such Alternative Proposal and Proposal, (C) the Board of Directors has reasonably concluded in good faith that such Alternative Proposal is likely to be more favorable to EUAthe Company's shareholders stockholders than the Merger, (CD) prior to furnishing such information to, or entering into discussions or negotiations with, such person or group, EUA the Company provides written notice to XXXX ScottishPower or HoldCo to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or group, which notice shall identify such person or group and the material terms of the Alternative Proposal in reasonable detail, and (DE) EUA the Company keeps XXXX promptly ScottishPower or HoldCo appropriately informed of the status and all material information with respect to of any such discussions or negotiations; and (ii) to the extent required, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 7.08 5.07 shall (x) permit EUA the Company to terminate this Agreement (except as specifically provided in Article IXVIII), (y) permit EUA the Company to enter into any agreement with respect to an Alternative Proposal for so long as this Agreement remains in effect (it being agreed that for so long as this Agreement remains in effect, EUA the Company shall not enter into any agreement with any person or group that provides for, or in any way knowingly facilitates, an Alternative Proposal (other than a confidentiality agreement under the circumstances described above)), or (z) affect any other obligation of EUA the Company under this Agreement.
Appears in 1 contract
No Solicitations. Prior (a) Except as disclosed in SECTION 5.07 of the Company Disclosure Letter, prior to the Effective Time, EUA agrees: the Company agrees (ai) that neither it nor any of its Subsidiaries or other affiliates shall, and it shall use its best efforts to cause its their respective Representatives (as defined in Section 10.10SECTION 9.12) not to, knowingly initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its Shareholdersstockholders) with respect to a merger, consolidation or other business combination including EUA the Company or any of its significant Subsidiaries (as defined in Rule 1-02(W) of Regulation S-X promulgated under the Exchange Act) other than EUA Cogenex Corporation (an "EUA Significant Subsidiary"), or any acquisition or similar transaction (including, without limitation, a tender or exchange offer) involving the purchase of (iA) all or any significant portion of the assets of EUA the Company and its Subsidiaries taken as a whole, (iiB) ten percent 5% or more of the outstanding EUA Shares shares of Company Common Stock or (iiiC) 505% or more of the outstanding shares of the capital stock of any EUA Significant Subsidiary of the Company (any such proposal or offer being hereinafter referred to as an "Alternative ProposalALTERNATIVE PROPOSAL"), or engage in any negotiations concerning, or provide any confidential information or data to, or have any other discussions with, any person or group relating to an Alternative ProposalProposal (excluding the transactions contemplated by this Agreement), or otherwise knowingly facilitate any effort or attempt to make or implement an Alternative Proposal other than from XXXX and its affiliatesProposal; (bii) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties with respect to any Alternative Proposalof the foregoing, and it will take the necessary steps to inform such parties of its obligations under this Section; and (ciii) that it will notify XXXX immediately ScottishPower or HoldCo promptly if any such inquiries, proposals or offers are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it or any of such persons; provided, however, that, prior to receipt of the EUA Shareholders' Approval, that nothing contained in this Section 7.08 SECTION 5.07(a) shall prohibit the Board of Trustees Directors of EUA the Company from (i) furnishing information to (but only pursuant to a confidentiality agreement in customary form and having terms and conditions no less favorable to EUA the Company than the Confidentiality Agreement (as defined in Section 7.01SECTION 6.01)) or entering into discussions or negotiations with any person or group that makes an unsolicited BONA FIDE Alternative Proposal, if, and only to the extent that, prior to receipt of the Company Stockholders' Approval, (A) the Board of Trustees Directors of EUAthe Company, based upon the advice of outside counsel with respect to fiduciary dutiescounsel, determines in good faith that a failure to perform such action is necessary for the Board of Trustees could reasonably be expected to act result in a manner consistent with breach of its fiduciary duties to Shareholders under applicable stockholders imposed by law, (B) the Board of Trustees of EUA Directors has reasonably concluded in good faith (after consultation with its financial advisors) that the person or group making such Alternative Proposal will have adequate sources of financing to consummate such Alternative Proposal and Proposal, (C) the Board of Directors has reasonably concluded in good faith that such Alternative Proposal is likely to be more favorable to EUAthe Company's shareholders stockholders than the Merger, (CD) prior to furnishing such information to, or entering into discussions or negotiations with, such person or group, EUA the Company provides written notice to XXXX ScottishPower or HoldCo to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or group, which notice shall identify such person or group and the material terms of the Alternative Proposal in reasonable detail, and (DE) EUA the Company keeps XXXX promptly ScottishPower or HoldCo appropriately informed of the status and all material information with respect to of any such discussions or negotiations; and (ii) to the extent required, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 7.08 SECTION 5.07 shall (x) permit EUA the Company to terminate this Agreement (except as specifically provided in Article IXARTICLE VIII), (y) permit EUA the Company to enter into any agreement with respect to an Alternative Proposal for so long as this Agreement remains in effect (it being agreed that for so long as this Agreement remains in effect, EUA the Company shall not enter into any agreement with any person or group that provides for, or in any way knowingly facilitates, an Alternative Proposal (other than a confidentiality agreement under the circumstances described above)), or (z) affect any other obligation of EUA the Company under this Agreement.
Appears in 1 contract
No Solicitations. Prior to At all times from and after the date hereof until the Effective Time, EUA agrees: each Principal Party covenants and agrees as to itself and its Subsidiaries (a) that neither it nor any of its Subsidiaries or other affiliates shall, and it shall use its best efforts to cause its Representatives (as defined in Section 10.109.11) not to, knowingly initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its Shareholdersshareholders) with respect to a merger, consolidation or other business combination including EUA such Principal Party or any of its significant Subsidiaries (as defined in Rule 1-02(W) of Regulation S-X promulgated under the Exchange Act) other than EUA Cogenex Corporation (an "EUA Significant Subsidiary"), or any acquisition or similar transaction (including, without limitation, a tender or exchange offer) involving the purchase of (i) all or any significant portion of the assets of EUA such Principal Party and its Subsidiaries taken as a whole, (ii) ten percent 20% or more of the outstanding EUA Shares shares of such Principal Party's common stock or (iii) 5020% or more of the outstanding shares of the capital stock of any EUA Significant Subsidiary of such Principal Party (any such proposal or offer being hereinafter referred to as an "Alternative Proposal"), or engage in any negotiations concerning, or provide any confidential information or data to, or have any other discussions with, any person or group relating to an Alternative ProposalProposal (excluding the transactions contemplated by this Agreement), or otherwise knowingly facilitate any effort or attempt to make or implement an Alternative Proposal other than from XXXX and its affiliatesProposal; (b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties with respect to any Alternative Proposalof the foregoing, and it will take the necessary steps to inform such parties of its obligations under this Section; and (c) that it will notify XXXX the other Principal Party immediately if any such inquiries, proposals or offers are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it or any of such persons; provided, however, that, prior to receipt of the EUA Shareholders' Approval, that nothing contained in this Section 7.08 5.02 shall prohibit the Board of Trustees Directors of EUA either Principal Party from (i) furnishing information to (but only pursuant to a confidentiality agreement in customary form and having terms and conditions no less favorable to EUA such Principal Party than the Confidentiality Agreement (as defined in Section 7.01)Agreement) or entering into discussions or negotiations with any person or group that makes an unsolicited bona fide Alternative Proposal, if, and only to the extent that, (A) the Board of Trustees of EUA, based upon advice of outside counsel with respect to fiduciary duties, determines in good faith that such action is necessary for the Board of Trustees to act in a manner consistent with its fiduciary duties to Shareholders under applicable law, (B) the Board of Trustees of EUA has reasonably concluded in good faith (after consultation with its financial advisors) that the person or group making such Alternative Proposal will have adequate sources of financing to consummate such Alternative Proposal and that such Alternative Proposal is likely to be more favorable to EUA's shareholders than the Merger, (C) prior to furnishing such information to, or entering into discussions or negotiations with, such person or group, EUA provides written notice to XXXX to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or group, which notice shall identify such person or group and the material terms receipt of the Alternative Proposal in reasonable detail, and Grizzly Shareholders' Approval (Dif such Principal Party is Grizzly) EUA keeps XXXX promptly informed of or the status and all material information with respect to any such discussions or negotiations; and (ii) to the extent required, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 7.08 shall (x) permit EUA to terminate this Agreement (except as specifically provided in Article IX), (y) permit EUA to enter into any agreement with respect to an Alternative Proposal for so long as this Agreement remains in effect (it being agreed that for so long as this Agreement remains in effect, EUA shall not enter into any agreement with any person or group that provides for, or in any way knowingly facilitates, an Alternative Proposal (other than a confidentiality agreement under the circumstances described above)), or (z) affect any other obligation of EUA under this Agreement.Lynx Shareholders' Approval A-24
Appears in 1 contract
Samples: Agreement and Plan of Merger (General Scanning Inc \Ma\)
No Solicitations. Prior to the Effective Time, EUA agrees: the Company agrees (a) that neither it nor any of its Subsidiaries shall, and it shall use its best efforts to cause its their respective Representatives (as defined in Section 10.10) not to, knowingly initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its Shareholdersstockholders) with respect to a merger, consolidation or other business combination including EUA the Company or any of its significant Subsidiaries (as defined in Rule 1-02(W) of Regulation S-X promulgated under the Exchange Act) other than EUA Cogenex Corporation (an "EUA Significant Subsidiary"), or any acquisition or similar transaction (including, without limitation, a tender or exchange offer) involving the purchase of (i) all or any significant portion of the assets of EUA the Company and its Subsidiaries taken as a whole, (ii) ten percent 20% or more of the outstanding EUA Shares shares of Company Common Stock or (iii) 5020% or more of the outstanding shares of the capital stock of any EUA Significant Subsidiary of the Company (any such proposal or offer being hereinafter referred to as an "Alternative Proposal"), or engage in any negotiations concerning, or provide any confidential information or data to, or have any other discussions with, any person or group relating to an Alternative ProposalProposal (excluding the transactions contemplated by this Agreement), or otherwise knowingly facilitate any effort or attempt to make or implement an Alternative Proposal other than from XXXX and its affiliatesProposal; (b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties with respect to any Alternative Proposal; and (c) that it will notify XXXX Parent immediately if any such inquiries, proposals or offers are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it or any such person or group; and (c) that it will, prior to accepting any Alternative Proposal, (i) receive a determination from an independent financial advisor that such Alternative Proposal is more favorable (from a financial point of view) to the Company's stockholders than the Merger, (ii) determine in the exercise of its fiduciary obligations under applicable law as advised by independent counsel that such Alternative Proposal is more favorable to the Company's stockholders than the Merger, and (iii) deliver to Parent a definitive agreement of such personsAlternative Proposal or a description of the material terms thereof and, except as would violate a fiduciary or contractual obligation, a copy of any information provided by such person or group, including the identity of such person or group, and give Parent at least three (3) days to offer a counterproposal prior to executing such definitive agreement; provided, however, that, prior to receipt of the EUA Shareholders' Approval, that 42 49 nothing contained in this Section 7.08 6.16 shall prohibit the Board of Trustees Directors of EUA the Company from (i1) furnishing information to (but only pursuant to a confidentiality agreement in customary form and having terms and conditions no less favorable to EUA than the Confidentiality Agreement (as defined in Section 7.01)) or entering into discussions or negotiations with any person or group that makes an unsolicited bona fide Alternative Proposal, if, and only to the extent that, (A) the Board of Trustees Directors of EUAthe Company, based upon advice the written opinion of outside counsel with respect (a copy of which shall be provided promptly to fiduciary dutiesParent), determines in good faith that such action is necessary required or appropriate for the Board of Trustees Directors to act in a manner consistent comply with its fiduciary duties to Shareholders under applicable stockholders imposed by law, (B) the Board of Trustees of EUA Directors has reasonably concluded in good faith (after consultation with its financial advisors) that the person or group making such Alternative Proposal will have adequate sources of financing to consummate such Alternative Proposal and that such Alternative Acquisition Proposal is likely to be more favorable to EUAthe Company's shareholders stockholders than the Merger, Merger and (C) prior to furnishing such information to, or entering into discussions or negotiations with, such person or group, EUA the Company provides written notice to XXXX Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or group, which notice shall identify such person or group and the material terms of the Alternative Proposal in reasonable detail, and (D) EUA keeps XXXX promptly informed of the status and all material information with respect to any such discussions or negotiations; and (ii2) to the extent requiredapplicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 7.08 shall (x) permit EUA to terminate this Agreement (except as specifically provided in Article IX), (y) permit EUA to enter into any agreement with respect to an Alternative Proposal for so long as this Agreement remains in effect (it being agreed that for so long as this Agreement remains in effect, EUA shall not enter into any agreement with any person or group that provides for, or in any way knowingly facilitates, an Alternative Proposal (other than a confidentiality agreement under the circumstances described above)), or (z) affect any other obligation of EUA under this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Fpa Medical Management Inc)
