Acquisition Proposals. (a) Stockholder agrees that neither it nor any of its controlled Affiliates (other than the Company or its Subsidiaries) shall, and shall not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, (i) initiate, encourage, solicit, assist, induce or facilitate the making, submission or announcement of any Acquisition Inquiry or Acquisition Proposal; (ii) furnish or otherwise provide access to any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition Proposal. (b) Upon the execution hereof, Stockholder shall immediately cease and cause to be terminated all existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations). (c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other hand.
Appears in 12 contracts
Sources: Voting and Support Agreement (KKR Credit Advisors (US) LLC), Voting and Support Agreement (KKR Credit Advisors (US) LLC), Voting and Support Agreement (KKR Credit Advisors (US) LLC)
Acquisition Proposals. (a) Stockholder SCB agrees that neither it nor any of its controlled Affiliates Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall use its reasonable best efforts to cause its and its Subsidiaries' employees, agents and representatives (other than the Company including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) shall, and shall not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, (i) initiate, encourage, solicit, assist, induce encourage or facilitate (including by way of furnishing information) any inquiries or the making, submission or announcement making of any Acquisition Inquiry proposal or offer with respect to a merger, reorganization, share exchange, consolidation, amalgamation, business combination, recapitalization, liquidation, dissolution, joint venture, partnership, alliance or similar transaction involving it, or any purchase or sale of the consolidated assets (including without limitation stock of Subsidiaries) of SCB and its Subsidiaries, taken as a whole, having an aggregate value equal to 25% or more of the market capitalization of SCB, or any purchase or sale of, or tender or exchange offer for, 25% or more of the equity securities of SCB (being hereinafter referred to as an "Acquisition Proposal; "). SCB further agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall use its reasonable best efforts to cause its and its Subsidiaries' employees, agents and representatives (iiincluding any investment banker, attorney or accountant retained by it or any of its Subsidiaries) furnish not to, directly or otherwise indirectly, have any discussion with or provide access to any information regarding any Acquired Company or data to any Person in connection with or in response relating to any Acquisition Inquiry or an Acquisition Proposal; (iii) , or engage in discussions or any negotiations with any Person with respect to any Acquisition Inquiry or concerning an Acquisition Proposal; , or (iv) otherwise knowingly facilitate any effort or attempt to make or implement an Acquisition Inquiry Proposal or accept an Acquisition Proposal. Notwithstanding anything in this Agreement to the contrary, SCB and SCB's board of directors shall be permitted to the extent applicable, comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, with applicable case law, and with applicable fiduciary responsibilities. SCB shall notify CIBER promptly of any and all inquiries, proposals or offers received by, any such information requested from, or any discussions or negotiations sought to be initiated with, any of its representatives with regard to an Acquisition Proposal, indicating the name of the parties involved and the material terms and conditions of any inquiries, proposals or offers. Nothing in this Agreement shall prohibit the SCB Board from engaging in the activities described above with respect to any person who has submitted on an unsolicited basis to SCB (i) an Acquisition Proposal believed by the SCB Board in good faith to be bona fide or enter into (ii) an expression of interest believed by the SCB Board in good faith to be bona fide indicating such person's desire to pursue the possibility of making an Acquisition Proposal on terms believed by the SCB Board to be financially superior to the Merger (a "Superior Proposal") and, in either such case:
(a) the SCB Board or any agreement in principlecommittee thereof, letter of intentafter consultation with its independent legal counsel, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating determines that taking such action is appropriate for such Board to any Acquisition Inquiry or Acquisition Proposal.comply with its fiduciary duties under applicable law;
(b) Upon the execution hereofSCB Board or any committee thereof, Stockholder after consultation with its financial advisors, concludes in good faith that such Acquisition Proposal, taking into account, among other things, all material legal, financial, regulatory and other aspects of such proposal and the person making such proposal, could lead to a Superior Proposal;
(c) prior to providing any of the information described herein above, SCB obtains from such person an executed confidentiality agreement; and
(d) prior to taking any action with respect to any such Acquisition Proposal or expression of interest, SCB shall notify CIBER of any actions it has determined to take with respect to such Acquisition Proposal or expression of interest. SCB agrees that it will, and will cause its officers, directors and representatives to, immediately cease and cause to be terminated all existing any activities, discussions or negotiations existing as of the date of this Agreement with any parties (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry or Acquisition Proposal or sale Proposal. SCB agrees that it will use reasonable best efforts to promptly inform its directors, officers, key employees, agents and representatives of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions obligations undertaken in this Section 5.2 5.8. Nothing in this Section 5.8 shall not apply permit CIBER or SCB to terminate this Agreement (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other handexcept as specifically provided in Article VII hereof).
Appears in 4 contracts
Sources: Merger Agreement (Ciber Inc), Merger Agreement (Ciber Inc), Merger Agreement (SCB Computer Technology Inc)
Acquisition Proposals. (a) The Stockholder agrees that neither it nor will promptly (and in any of its controlled Affiliates (other than the Company event, within 48 hours) notify, or its Subsidiaries) shall, and shall not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a cause another stockholder of the Company and not as an officer, director or employee a Person acting on behalf of all of the Company) toStockholder to notify, directly Parent and Acquisition Sub immediately following the Stockholder’s learning that any inquiries, proposals or indirectlyoffers with respect to an Acquisition Proposal are received by, (i) initiateany information is requested from, encourageor any such discussions or negotiation are sought to be initiated or continued with, solicitit or any of its Representatives indicating, assistin connection with such notice, induce or facilitate the making, submission or announcement name of such Person and the material terms and conditions of any proposals or offers (including copies of any written requests, proposals or offers, including proposed agreements), and thereafter shall keep Parent and Acquisition Inquiry Sub informed, on a current basis, of the status and terms of such proposals or offers (including any amendments thereto and, in no event later than 48 hours after receipt, copies of any additional or revised written requests, proposals or offers, including proposed agreements) and the status of any such discussions or negotiations. The Stockholder agrees that it will not enter into any agreement with any Person subsequent to the date hereof that prohibits it from providing any information to Parent or Acquisition Proposal; (ii) furnish Sub in accordance with this Section 4(a). Without limiting the generality of the foregoing or otherwise Section 4(b), the Stockholder shall notify Parent and Acquisition Sub in advance of beginning to provide access to any information regarding any Acquired Company to any Person in connection with relating to an Acquisition Proposal or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in beginning discussions or negotiations with any Person with respect to any Acquisition Inquiry or person regarding an Acquisition Proposal; or (iv) otherwise facilitate . Any violations of the restrictions set forth above by any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter Representative of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition Proposal.
(b) Upon the execution hereof, Stockholder shall immediately cease and cause be deemed to be terminated all existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry or Acquisition Proposal or sale a breach of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i4(a) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other hand.
Appears in 4 contracts
Sources: Support and Voting Agreement (Iroquois Capital Management, LLC), Support and Voting Agreement (Fagenson Robert B), Support and Voting Agreement (National Holdings Corp)
Acquisition Proposals. (a) Stockholder agrees that neither it nor any of its controlled Affiliates (other than the Company or its Subsidiaries) shall, and shall not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative Subject to Section 7.2 of the Company shall not constitute a Representative of a Stockholder unless such Merger Agreement and Section 5.3, during the Voting Period, Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) tonot, directly or indirectly, and shall ensure that each of Stockholder’s Representatives does not, directly or indirectly: (i) initiate, encourage, solicit, assist, induce or facilitate the making, submission or announcement of any Acquisition Inquiry or Acquisition Proposal; (ii) furnish or otherwise provide access to any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Inquiry or Acquisition Proposal or publicly support or endorse any Acquisition Proposal; (iv) take any action that could result in the revocation or invalidation of the Proxy; (v) take any public action that is reasonably determined by Parent to suggest that Stockholder no longer supports the Merger; (vi) agree or publicly propose to take any of the actions referred to in this Section 5.2 or otherwise prohibited by this Agreement; or (ivvii) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition Proposal.
(b) Upon the execution hereof, Stockholder shall immediately cease and cause to be terminated all existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) . Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other hand.
Appears in 3 contracts
Sources: Voting and Support Agreement (Primoris Services Corp), Voting and Support Agreement (Primoris Services Corp), Voting and Support Agreement (Primoris Services Corp)
Acquisition Proposals. (a) Stockholder agrees that neither it nor any During the period from the date of its controlled Affiliates (other than this Agreement through the Company Closing Date or its Subsidiaries) shallthe termination of this Agreement pursuant to Article 9, each Malvern Entity shall not, and shall cause its respective Representatives not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, (i) take any action to solicit, encourage (including by providing information or assistance), initiate, encourage, solicit, assist, facilitate or induce or facilitate the making, submission or announcement of any Acquisition Inquiry or Acquisition Proposal; , (ii) participate or engage in any discussions or negotiations regarding, or furnish or otherwise provide access cause to any information regarding any Acquired Company be furnished to any Person any nonpublic information with respect to, or take any action to facilitate any inquiries or the making of any offer or proposal that constitutes, or may reasonably be expected to lead to an Acquisition Proposal, except to notify a Person that has made or, to the Knowledge of Malvern, is making inquiries with respect to, or is considering making, an Acquisition Proposal, of the existence of this Section 7.2, (iii) approve, agree to, accept, endorse or recommend any Acquisition Proposal, or (iv) approve, agree to, accept, endorse or recommend, or propose to approve, agree to, accept, endorse or recommend any Acquisition Agreement contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.2 by any Subsidiary or Representative of Malvern shall constitute a breach of this Section 7.2 by ▇▇▇▇▇▇▇.
(b) Notwithstanding anything to the contrary in Section 7.2(a), if Malvern or any of its Representatives receives an unsolicited, bona fide written Acquisition Proposal by any Person or “Group” (as such term is defined in Section 13(d) under the Exchange Act) at any time prior to receipt of the Malvern Shareholder Approval that did not result from or arise in connection with a breach of Section 7.2(a), Malvern may, and may permit Malvern Subsidiaries and its Representatives to furnish or in response cause to any Acquisition Inquiry or Acquisition Proposal; (iii) engage be furnished nonpublic information and participate in discussions or negotiations with respect to such Acquisition Proposal, if the board of directors of Malvern (or any committee thereof) has (i) determined, in its good faith judgment (after consultation with ▇▇▇▇▇▇▇’s financial advisors and outside legal counsel), that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal and that the failure to take such actions would be reasonably likely to cause it to violate its fiduciary duties under applicable Law, and (ii) prior to furnishing any nonpublic information or engaging in any discussions permitted by this sentence, obtained from such Person or “Group” an executed confidentiality agreement containing terms at least as restrictive with respect to such Person or “Group” as the terms of the confidentiality agreement entered into between Malvern and First Bank are with respect to First Bank (and such confidentiality agreement shall not provide such Person or “Group” with any exclusive right to negotiate with Malvern). Malvern will promptly following receipt of any Acquisition Inquiry Proposal or any request for nonpublic information or any inquiry that could reasonably be expected to lead to any Acquisition Proposal, advise First Bank in writing of the receipt of such Acquisition Proposal, request or inquiry, and the terms and conditions of such Acquisition Proposal, request or inquiry (including, in each case, the identity of the Person or “Group” (as such term is defined in Section 13(d) under the Exchange Act) making any such Acquisition Proposal, request or inquiry), and provide to First Bank (i) a copy of such Acquisition Proposal, request or inquiry, if in writing, or (ii) a written summary of the material terms of such Acquisition Proposal, request or inquiry, if oral. Notwithstanding anything in this Agreement to the contrary, if the board of directors of Malvern has determined in its good faith judgement (after consultation with ▇▇▇▇▇▇▇’s financial advisors and outside legal counsel) that making the Malvern Recommendation would be reasonably likely to cause it to violate its fiduciary duties under applicable Law, then in submitting this Agreement to its stockholders, the board of directors of Malvern may make a Change in the Malvern Recommendation (although the resolutions approving this Agreement as of the date hereof may not be rescinded or amended); provided, that the board of directors of Malvern may not take any actions under this sentence unless (i) prior to such action it has complied in all material respects with its obligations under this Agreement and in all respects with its obligations under Sections 7.1 and 7.2 (other than unintentional, immaterial breaches that do not prejudice First Bank’s rights under such section), and following such action it complies with, and fulfills, its obligations under Sections 7.1 and 7.2 (other than unintentional, immaterial breaches that do not prejudice First Bank’s rights under such section), (ii) Malvern gives First Bank at least five Business Days’ prior written notice of its intention to make a Change in the Malvern Recommendation and a reasonable description of the event or circumstances giving rise to its determination to take such action (including, the latest material terms and conditions of, and the identity of the third party making, any Acquisition Proposal, or any amendment or modification thereof) and (iii) at the end of such notice period, the board of directors of Malvern takes into account any amendment or modification to this Agreement proposed by First Bank and after receiving the advice of its outside counsel, has determined in its good faith judgment that it would nevertheless be reasonably likely to result in a violation of its fiduciary duties under applicable Law to continue to make the Malvern Recommendation. Any amendment to any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of this Section 7.2 and will require a new notice period as referred to in this Section 7.2. Notwithstanding any Change in the Malvern Recommendation, unless this Agreement has been terminated in accordance with its terms, this Agreement shall be submitted to the shareholders of Malvern at the Malvern Shareholders Meeting in accordance with Section 7.1(c); provided, that if the board of directors of Malvern shall have effected a Change in the Malvern Recommendation pursuant to Section 7.2(b) and in accordance with the terms of this Agreement, then the board of directors of Malvern, in connection with the submission of this Agreement to the shareholders of Malvern may submit this Agreement without recommendation, or may change its recommendation (although the resolutions approving this Agreement as of the date hereof may not be rescinded or amended), in which event the board of directors of Malvern may communicate the basis for its lack of a recommendation or change in recommendation to the shareholders of Malvern in the Joint Proxy Statement-Offering Circular or an appropriate amendment or supplement thereto. Nothing contained in this Agreement shall prevent a party or its Board of Directors from complying with Rules 14d-9 and 14e-2 under the Exchange Act or Item 1012(a) of Regulation M-A with respect to an Acquisition Proposal; provided, that such rules will in no way eliminate or (iv) modify the effect that any action pursuant to such rules would otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition Proposalhave under this Agreement.
(bc) Upon the execution hereofMalvern and Malvern Subsidiaries shall, Stockholder and Malvern shall direct its Representatives to, (i) immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) Persons conducted heretofore with respect to any offer or proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Inquiry Proposal, (ii) request the prompt return or Acquisition Proposal or sale destruction of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and all confidential information previously furnished to any Person (other than Parent First Bank and its AffiliatesRepresentatives) with respect that has made or indicated an intention to make an Acquisition Proposal heretofore and (iii) not waive or amend any sale “standstill” provision or provisions of similar effect to which it is a party or of which it is a beneficiary and shall strictly enforce any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations)provisions.
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other hand.
Appears in 3 contracts
Sources: Merger Agreement (Malvern Bancorp, Inc.), Merger Agreement (Malvern Bancorp, Inc.), Merger Agreement (Malvern Bancorp, Inc.)
Acquisition Proposals. (a) Stockholder agrees that neither it nor any of its controlled Affiliates (other than the Company or its Subsidiaries) shall, and shall not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in In his, her or its capacity as a stockholder shareholder of the Company Xenith, and not in his or her capacity as an officera director, director officer or employee of the CompanyXenith, as applicable, Shareholder agrees that Shareholder will not, and will cause its officers and directors, and will instruct and use reasonable best efforts to cause its representatives and partners (if an entity) not to, directly or indirectly, (i) initiate, encourage, solicit, assist, induce knowingly encourage or knowingly facilitate the making, submission inquiries or announcement of any Acquisition Inquiry or proposals with respect to an Acquisition Proposal; , (ii) furnish engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, have or participate in any discussions with or otherwise provide access to cooperate in any information regarding way with, any Acquired Company to any Person person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Inquiry or Acquisition Proposal; Proposal or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principleterm sheet, letter of intent, memorandum of understanding, term sheetagreement in principle, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract agreement (other than a confidentiality agreement referred to and entered into in accordance with Section 5.5(b) of the Merger Agreement) relating to any Acquisition Inquiry or Acquisition Proposal.
, in each case, except to the extent that Xenith is permitted to take such action pursuant to the Merger Agreement. Shareholder will and will cause its officers, directors, and will use Shareholder’s reasonable best efforts to cause its representatives and partners (bif an entity) Upon the execution hereofto, Stockholder shall immediately cease and cause to be terminated all existing any activities, discussions or negotiations conducted before the date of this Agreement with any parties (person other than Parent and its Affiliates) conducted heretofore Union with respect to any Acquisition Inquiry or Proposal of Xenith. Shareholder will promptly (within twenty-four (24) hours) advise Union following Shareholder’s receipt of any Acquisition Proposal or sale of Shares held by Stockholderany inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the material terms and conditions of the Acquisition Proposal), and will keep Union apprised of any related material developments, discussions and negotiations on a reasonably current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal, in each case to the extent Xenith has not previously notified Union. All references herein to an Acquisition Proposal shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) refer to an Acquisition Proposal with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations)Xenith.
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other hand.
Appears in 3 contracts
Sources: Merger Agreement (Xenith Bankshares, Inc.), Voting Agreement (BankCap Equity Fund, LLC), Voting Agreement (Carlyle Group Management L.L.C.)
Acquisition Proposals. (a) Stockholder agrees that neither it nor any of its controlled Affiliates (other than the Company or its Subsidiaries) No Seller Entity shall, and it shall not authorize or permit cause its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, (i) solicit, initiate, encourageencourage (including by providing information or assistance), solicit, assist, facilitate or induce or facilitate the making, submission or announcement of any Acquisition Inquiry or Acquisition Proposal; , (ii) engage or participate in any discussions or negotiations regarding, or furnish or otherwise provide access cause to any information regarding any Acquired Company be furnished to any Person in connection any confidential or nonpublic information or data with respect to, or in response take any other action to facilitate any inquiries or the making of any offer or proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal (iii) adopt, approve, agree to, accept, endorse or recommend any Acquisition Proposal, (iv) approve, agree to, accept, endorse or recommend, or propose to approve, agree to, accept, endorse or recommend any Acquisition Agreement contemplating or otherwise relating to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Inquiry or Acquisition Proposal; Transaction, or (ivv) except as otherwise expressly provided in this Section 7.2, otherwise cooperate in any way with, or assist or participate in, or facilitate or encourage any effort or attempt by any Person to make do or implement an Acquisition Inquiry seek to do any of the foregoing. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.2 by any Subsidiary or Representative of Seller shall constitute a breach of this Section 7.2 by Seller. In addition to the foregoing, unless this Agreement has been terminated in accordance with Section 9.1, Seller shall not submit to the vote of its shareholders any Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition Proposalthan the Merger.
(b) Upon Promptly (but in no event more than 48 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or any inquiry that could reasonably be expected to lead to any Acquisition Proposal, Seller shall advise Buyer in writing of the execution hereofreceipt of such Acquisition Proposal, Stockholder request or inquiry, and the terms and conditions of such Acquisition Proposal, request or inquiry (including, in each case, the identity of the Person making any such Acquisition Proposal, request or inquiry), and Seller shall as promptly as practicable provide to Buyer (i) a copy of such Acquisition Proposal, request or inquiry, if in writing, or (ii) a written summary of the material terms of such Acquisition Proposal, request or inquiry, if oral. Seller shall provide Buyer as promptly as practicable (but in no event more than 48 hours) with notice setting forth all such information as is necessary to keep Buyer informed on a reasonably current basis of all developments, discussions, negotiations and communications regarding (including amendments or proposed amendments to) such Acquisition Proposal, request or inquiry.
(c) Notwithstanding anything herein to the contrary, at any time prior to Seller’s Shareholders’ Meeting, the board of directors of Seller may submit this Agreement to Seller’s shareholders without recommendation (although the resolution approving this Agreement as of the date hereof may not be rescinded or amended), if (i) Seller has received a Superior Proposal (after giving effect to the terms of any revised offer by Buyer pursuant to this Section 7.2(c)), and (ii) the board of directors of Seller has determined in good faith, after consultation with its financial advisors and outside legal counsel, that it would be inconsistent with the directors’ fiduciary duties under applicable Law to make or continue to make the Seller Recommendation; provided, that the board of directors of Seller may not take the actions set forth in this Section 7.2(c) unless:
(i) Seller has complied in all material respects with this Section 7.2;
(ii) Seller has provided Buyer at least five Business Days prior written notice of its intention to take such action and the information set forth under Section 7.2(b));
(iii) during such five Business Day period, Seller has considered and negotiated, and has caused its financial advisors and outside legal counsel to consider and negotiate, with Buyer in good faith (to the extent Buyer desires to so negotiate) regarding any proposals, adjustments or modifications to the terms and conditions of this Agreement proposed by Buyer; and
(iv) the board of directors of Seller has determined in good faith, after consultation with its financial advisors and outside legal counsel and considering the results of such negotiations and giving effect to any proposals, amendments or modifications proposed by Buyer prior to the close of business on the fifth Business Day of such five Business Day period, if any, that such Superior Proposal remains a Superior Proposal and that it would nevertheless be inconsistent with the directors’ fiduciary duties under applicable Law to make or continue to make the Seller Recommendation. Any material amendment to any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of this Section 7.2(c) and will require a new determination and notice period as referred to in this Section 7.2(c).
(d) Seller and Seller Subsidiaries shall, and Seller shall direct its Representatives to, (i) immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) Persons conducted heretofore with respect to any offer or proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Inquiry Proposal, (ii) request the prompt return or Acquisition Proposal or sale destruction of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and all confidential information previously furnished to any Person (other than Parent Buyer, Buyer Bank and their Representatives) that has made or indicated an intention to make an Acquisition Proposal, and (iii) except to the extent the board of directors of Seller determines in good faith, after consultation with its Affiliatesoutside legal counsel, that it would be inconsistent with the directors’ fiduciary duties under applicable Law, not waive or amend any “standstill” provision or provisions of similar effect to which it is a party or of which it is a beneficiary and shall strictly enforce any such provisions.
(e) Nothing contained in this Agreement shall prevent Seller or its board of directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act or Item 1012(a) of Regulation M-A with respect to an Acquisition Proposal or from making any sale legally required disclosure to the shareholders of Seller; provided, that such rules will in no way eliminate or modify the effect that any Shares held by Stockholder (other than action pursuant to state that Stockholder is currently not permitted to engage in such discussions or negotiations)rules would otherwise have under this Agreement.
(cf) Notwithstanding anything to the foregoingcontrary in Section 7.2(a), if Seller or any of its Representatives receives an unsolicited, bona fide written Acquisition Proposal by any Person at any time prior to the restrictions Seller Shareholder Approval that did not result from or arise in this connection with a breach of Section 5.2 shall 7.2(a), Seller and its Representatives may, prior to (but not apply after) the Seller’s Shareholders’ Meeting, take the following actions if the board of directors of Seller (or any committee thereof) has (i) determined, in its good faith judgment (after consultation with Seller’s financial advisors and outside legal counsel), that such Acquisition Proposal constitutes or would reasonably be expected to lead to a Superior Proposal and that the failure to take such actions would be inconsistent with its fiduciary duties under applicable Law, and (ii) obtained from such Person an executed confidentiality agreement containing terms at least as restrictive with respect to any discussions or negotiations such Person as the terms of the Confidentiality Agreement are in each provision with respect to the transfer of Shares permitted by Section 2.3Buyer (and such confidentiality agreement shall not provide such Person with any exclusive right to negotiate with Seller): (A) furnish information to (but only if Seller shall have provided such information to Buyer prior to furnishing it to any such Person), or and (iiB) enter into discussions and negotiations with, such Person and its Representatives with respect to any discussions between the Stockholdersuch unsolicited, on the one hand, and any Affiliate or Representative of Stockholder on the other handbona fide written Acquisition Proposal.
Appears in 3 contracts
Sources: Merger Agreement (Spirit of Texas Bancshares, Inc.), Merger Agreement (Simmons First National Corp), Merger Agreement (Spirit of Texas Bancshares, Inc.)
Acquisition Proposals. (a) Stockholder agrees that neither it nor any of its controlled Affiliates (other than Between the Company or its Subsidiaries) shalldate hereof and the Closing, and Seller shall not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) tonot, directly or indirectly, (ia) initiate, encourage, take any action to solicit, assistinitiate submission of or knowingly encourage any Acquisition Proposal or (b) participate in any substantive discussions or negotiations regarding an Acquisition Proposal with anyone, induce except in the case of each of the foregoing for Acquisition Proposals by or facilitate the makingon behalf of Buyer or its affiliates. During such period, submission or announcement Seller shall promptly notify Buyer upon receipt of any Acquisition Inquiry indication of interest or any offer with respect to an Acquisition Proposal; . For purposes hereof, an "Acquisition Proposal" shall include any proposal for any acquisition or purchase by anyone of all or a portion of the Purchased Assets or any equity interest in Seller or any of its subsidiaries, of any merger or business combination with, or any acquisition of, Seller or any of its subsidiaries. If, after the entry of the Approval Order, Seller enters into a written agreement to accept any Acquisition Proposal, Seller shall, in addition to returning Buyer's Deposit (ii) furnish or otherwise provide access to together with any information regarding any Acquired Company to any Person interest), promptly reimburse Buyer for all of Buyer's expenses incurred in connection with preparing its Bid, its investigation of Seller and its negotiation and preparation of this Agreement, including the fees and expenses of Buyer's attorneys, accountants and advisors, such reimbursement being in addition to any other remedy to which Buyer may be entitled at law or in response equity or under the terms of this Agreement. Notwithstanding anything herein to the contrary, until the Bankruptcy Court enters the Approval Order Seller may (and may authorize and/or permit any Acquisition Inquiry of its officers, directors, employees, attorneys, agents or Acquisition Proposal; (iiirepresentatives to) engage in discussions or negotiations with any Person furnish information with respect to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating Seller to any Acquisition Inquiry person or Acquisition Proposal.
(b) Upon the execution hereof, Stockholder shall immediately cease and cause to be terminated all existing activities, discussions persons making an unsolicited proposal or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, inquiry and shall refrain from engaging notify Buyer in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale writing of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions proposal or negotiations)inquiry.
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other hand.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Converse Inc), Stock and Note Purchase Agreement (Converse Inc), Asset Purchase Agreement (Converse Inc)
Acquisition Proposals. (a) Stockholder agrees that From the date of this Agreement until the Closing Date or, if earlier, the termination of this Agreement, neither it the Acquiror nor any of its controlled Affiliates (other than the Company or its Subsidiaries) shallAcquiror Principal Shareholder will, and shall not neither the Acquiror nor any Acquiror Principal Shareholder will authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative the any representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged Acquiror or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) any Acquiror Principal Shareholder to, directly or indirectly, : (i) solicit, initiate, knowingly encourage, solicit, assist, induce or facilitate the making, submission or announcement of any Acquisition Inquiry Competing Transaction Proposal from any Person (other than Acquiree or Acquisition the Acquiree Shareholder, a “Third Party”) or take any action that could reasonably be expected to lead to a Competing Transaction Proposal; , (ii) furnish or otherwise provide access to any information regarding any Acquired Company the Acquiror to any Person Third Party in connection with or in response to any Acquisition Inquiry a Competing Transaction Proposal or Acquisition Proposal; an inquiry or indication of interest, (iii) engage in or continue any discussions or negotiations with any Person Third Party with respect to any Acquisition Inquiry or Acquisition Competing Transaction Proposal; or , (iv) otherwise facilitate approve, endorse or recommend any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Competing Transaction Proposal or (v) enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement intent or other similar document or any Contract contemplating or otherwise relating to any Acquisition Inquiry or Acquisition Competing Transaction Proposal.
(b) Upon Concurrently with the execution hereofof this Agreement, Stockholder Acquiror and the Acquiror Principal Shareholder shall (i) immediately cease and cause to be terminated all any existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect Person that relate to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or Competing Transaction Proposal; (ii) as soon as practicable request each Person that has executed, within twelve (12) months prior to the date of this Agreement, a confidentiality agreement in connection with respect its consideration of a possible Competing Transaction Proposal to return or destroy all confidential information relating to the Acquiror heretofore furnished to such Person by or on behalf of any discussions Acquiror Principal Shareholder or the Acquiror, subject to whatever rights, if any, that such Person has to retain any such information or avoid any demand for its return or destruction pursuant to the terms of the confidentiality agreement between the Stockholder, on the one hand, such Person and any Affiliate Acquiror Principal Shareholder or Representative of Stockholder on the Acquiror; and (iii) cause any physical or virtual data room containing any such information to no longer be accessible to or by any Person other handthan Acquiree, the Acquiree Shareholder and their respective representatives.
Appears in 3 contracts
Sources: Share Exchange Agreement (Legacy Ventures International Inc.), Share Exchange Agreement (Sweets & Treats Inc.), Share Exchange Agreement (Sweets & Treats Inc.)
Acquisition Proposals. (a) Stockholder agrees that neither The Company shall not, nor shall it nor permit any of its controlled Affiliates (other than the Company or its Subsidiaries) shallsubsidiaries to, and nor shall not it authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an any officer, director or employee of of, or any investment banker, attorney or other advisor, representative or agent of, the Company) Company or any Company Subsidiary to, directly or indirectly, (i) initiate, encourage, solicit, assist, induce initiate or facilitate encourage the making, submission or announcement of any Company Acquisition Inquiry Proposal (as defined below), or take any other action to knowingly facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Company Acquisition Proposal; Proposal or (ii) furnish participate in or otherwise provide access to continue any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with regarding, or furnish to any Person person any non-public information with respect to to, any Acquisition Inquiry or Company Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition Proposal.
(b) Upon the execution hereof, Stockholder shall immediately cease and cause to be terminated all existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) . Notwithstanding the foregoing, prior to the restrictions time, but not after, the requisite vote of the Company Stockholders is obtained, if the Board of Directors of the Company determines in good faith, following consultation with outside counsel, that such action is required in order for such directors to comply with their fiduciary duties under applicable law, the Company, any Company Subsidiary or any officer, director or employee of, or any investment banker, attorney or other advisor, representative or agent of, the Company or any Company Subsidiary may, following the receipt of an unsolicited Company Acquisition Proposal by the Company, participate in negotiations regarding such Company Acquisition Proposal or furnish information regarding the Company and its business pursuant to an appropriate confidentiality agreement to the person making such Company Acquisition Proposal. Notwithstanding anything in this Section 5.2 Agreement to the contrary, the Company shall not apply promptly advise FNF orally and in writing of the receipt by it (ior any of the other entities or persons referred to above) with respect after the date hereof of any Company Acquisition Proposal, or any inquiry which could lead to any discussions Company Acquisition Proposal, the material terms and conditions of such Company Acquisition Proposal or negotiations with respect to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one handinquiry, and the identity of the person making any Affiliate such Company Acquisition Proposal or Representative inquiry. The Company shall keep FNF fully informed of Stockholder on the status and details of any such Company Acquisition Proposal or inquiry. For purposes of this Agreement, "Company Acquisition Proposal" means any proposal or offer for a merger, consolidation or other handbusiness combination involving the Company or any Company Subsidiary or any proposal or offer to acquire or cause to be acquired in any manner, directly or indirectly, all or substantially all of the business, assets or capital stock of the Company, other than the transactions contemplated by this Agreement.
Appears in 3 contracts
Sources: Merger Agreement (Fidelity National Information Services, Inc.), Merger Agreement (Fidelity National Financial Inc /De/), Merger Agreement (Fidelity National Financial Inc /De/)
Acquisition Proposals. (a) Each Stockholder covenants and agrees that neither it nor any during the period from the date of its controlled Affiliates (other than this Agreement through the Expiration Date, such Stockholder shall, if requested to do so by action of the Company Board or its Subsidiariesthe Special Committee of the Company Board, explore in good faith the possibility of working with any Persons or groups of Persons regarding an Acquisition Proposal (provided that the Company is permitted pursuant to Section 5.3(a) shallor 5.3(c) of the Merger Agreement to engage in discussions with such Persons or groups of Persons regarding such Acquisition Proposal), including by reviewing and shall not authorize or permit its Representatives (responding to proposals and taking part in meetings and negotiations with respect thereto; it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless that such Stockholder shall have separately engaged or directed such Person in his, her or its capacity Stockholder’s decision as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, (i) initiate, encourage, solicit, assist, induce or facilitate the making, submission or announcement of any Acquisition Inquiry or Acquisition Proposal; (ii) furnish or otherwise provide access to any information regarding any Acquired Company whether to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations work with any Person with respect to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter group of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition ProposalPersons after such good faith exploration shall be within such Stockholder’s discretion.
(b) Upon the execution hereofIf any Stockholder receives any inquiry or proposal that constitutes an Acquisition Proposal, such Stockholder shall immediately cease promptly inform the Company of such inquiry or proposal and cause to be terminated all existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations)the details thereof.
(c) Notwithstanding Each Stockholder shall keep confidential from Silver Lake Partners and its Affiliates (collectively, “SLP”) the foregoingspecific terms and conditions of any Acquisition Proposal made by a Person other than SLP or by a group of Persons of which SLP is not a member, provided that such confidentiality obligation shall be subject to the restrictions in this obligations of the Company pursuant to Section 5.2 5.3 of the Merger Agreement; provided, further, that the foregoing shall not apply restrict any Stockholder from discussing with SLP any aspect of any Acquisition Proposal that SLP may wish to make, including the price thereof, so long as such Stockholder does not disclose to SLP the specific terms and conditions of any Acquisition Proposal made by a Person other than SLP or by a group of Persons of which SLP is not a member.
(id) with respect to Notwithstanding anything in any discussions or negotiations with respect other agreement between the Company and any Stockholder to the transfer contrary, no Stockholder shall be prohibited from making any Acquisition Proposal to the Company, whether individually or as part of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other handa group.
Appears in 3 contracts
Sources: Voting and Support Agreement, Voting and Support Agreement (Dell Inc), Voting and Support Agreement (Dell Inc)
Acquisition Proposals. (a) Stockholder Without limitation on any of the Company's other obligations under this Agreement (including under Article V hereof), the Company agrees that neither it nor any of its controlled Affiliates Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall use its reasonable commercial efforts to cause its and its Subsidiaries' employees, agents and representatives (other than the Company including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) shall, and shall not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, (i) initiate, encourage, solicit, assist, induce encourage or knowingly facilitate any inquiries or the making, submission or announcement making of any Acquisition Inquiry or Acquisition Proposal; Proposal (as defined in Exhibit A hereto), (ii) furnish provide any nonpublic information or otherwise provide access to any information regarding any Acquired Company data to any Person in connection with relating to or in response to an Acquisition Proposal or any Acquisition Inquiry inquiry or indication of interest that could lead to an Acquisition Proposal; (iii) , or engage in any discussions or negotiations with any Person with respect to any Acquisition Inquiry or an Acquisition Proposal; , or (iv) otherwise knowingly facilitate any effort or attempt to make or implement an Acquisition Inquiry Proposal, (iii) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Acquisition Proposal or (iv) approve, endorse or recommend, or propose to approve, endorse or recommend, or execute or enter into into, any letter of intent, agreement in principle, letter of intent, memorandum of understanding, term sheetmerger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document agreement or Contract relating propose publicly or agree to do any of the foregoing related to any Acquisition Inquiry or Acquisition Proposal.
(b) Upon Notwithstanding anything in this Agreement to the execution hereofcontrary, Stockholder this Section 6.10 shall immediately cease not prohibit the Company or its Board of Directors (i) to the extent applicable, from complying with Rule 14e-2 and cause Rule 14d-9 promulgated under the Securities Exchange Act with regard to be terminated all existing activitiesan Acquisition Proposal, (ii) from effecting a change in the Company Board Recommendation or (iii) from engaging in any discussions or negotiations with, or providing any nonpublic information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person, if and only to the extent that, (A) in any such case referred to in Clause (ii) or (iii) above, neither the Company nor any representative of the Company shall have violated any of the restrictions of this Section 6.10, (B) in any such case referred to in clause (ii) or (iii), its meeting of shareholders shall not have occurred, (C) in the case of clause (ii) or (iii) above, it has received an unsolicited bona fide written Acquisition Proposal from a third party (which has not been withdrawn) and its Board of Directors concludes in good faith that such Acquisition Proposal constitutes a Superior Proposal (as defined below), (D) in the case of clause (ii) or (iii) above, its Board of Directors, after consultation with outside counsel, determines in good faith that such action is required in order for the Board of Directors to comply with its fiduciary duties under applicable law, (E) prior to providing any information or data to any Person in connection with an Acquisition Proposal by any such Person, its Board of Directors receives from such Person an executed confidentiality agreement having provisions that are customary in such agreements, as advised by counsel, and no less restrictive than the comparable provisions contained in the confidentiality agreement between the Company and the Parent Corporation, and at least two business days prior to furnishing any such nonpublic information to such person, the Company furnishes such nonpublic information to the Parent Corporation (to the extent not furnished previously), and (F) at least two business days prior to providing any information or data to any Person or entering into discussions or negotiations with any parties (other than Person, the Company notifies the Parent and its Affiliates) conducted heretofore with respect to Corporation of such inquiries, proposals or offers received by, any Acquisition Inquiry such information requested from, or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future such discussions or negotiations between Stockholder and sought to be initiated or continued with, such Person or any Person (other than Parent and of its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage representatives indicating, in such discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other hand.connection
Appears in 3 contracts
Sources: Merger Agreement (CFM Technologies Inc), Merger Agreement (Mattson Technology Inc), Merger Agreement (CFM Technologies Inc)
Acquisition Proposals. (a) Stockholder agrees that neither it nor any of its controlled Affiliates (other than the Company or its Subsidiaries) shallSo long as this Agreement remains in effect, except as otherwise expressly permitted by this Agreement, BYBK shall not, and it shall not authorize authorize, permit or permit its cause any BYBK Subsidiary or their respective Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, : (iA) initiate, encourage, solicit, assist, induce or encourage (including by way of furnishing information or providing assistance), or take any action to facilitate the makingmaking of, submission any inquiry, offer or announcement of any Acquisition Inquiry proposal that constitutes, relates or could reasonably be expected to lead to an Acquisition Proposal; (iiB) furnish or otherwise provide access respond to any information regarding any Acquired Company inquiry relating to any Person in connection with or in response to any Acquisition Inquiry or an Acquisition Proposal; (iiiC) engage recommend or endorse an Acquisition Proposal; (D) participate in any discussions or negotiations regarding any Acquisition Proposal or furnish, or otherwise afford access, to any Person (other than OLB) any information or data with respect to BYBK or any BYBK Subsidiary or otherwise relating to an Acquisition Proposal; (E) release any Person from, waive any provisions of, or fail to enforce any confidentiality agreement or standstill agreement to which BYBK or any BYBK Subsidiary is a party; or (F) enter into any agreement, agreement in principle, letter of intent or similar instrument, including any exclusivity agreement, with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal or any agreement, agreement in principle, letter of intent or similar instrument relating to an Acquisition Proposal. Any violation of the foregoing restrictions by BYBK or any of its Representatives, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of BYBK or otherwise, shall be deemed to be a breach of this Agreement by BYBK. BYBK and each BYBK Subsidiary shall, and shall cause each of its Representatives to, immediately cease and cause to be terminated any and all existing activities, discussions, negotiations and communications with any Person with respect to any Acquisition Inquiry existing or potential Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt . Notwithstanding the foregoing, prior to make or implement the approval of the Merger by BYBK’s stockholders at the BYBK Common Stockholders’ Meeting, BYBK may respond to an Acquisition Inquiry or Acquisition Proposal inquiry, furnish nonpublic information regarding itself and the BYBK Subsidiaries to, or enter into discussions with, any Person in response to an unsolicited Acquisition Proposal that is submitted to BYBK by such Person (and not withdrawn) if: (A) BYBK’s board of directors determines in good faith, after consultation with and having considered the advice of its outside legal counsel and the advice of the BYBK Advisers, that such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal (as defined below); (B) BYBK has not violated any of the restrictions set forth in this Section 5.7(a)(ii); (C) BYBK’s board of directors determines in good faith, after consultation with and based upon the advice of its outside legal counsel and the advice of the BYBK Advisers, that such action is required in order for the board of directors to comply with its fiduciary obligations under applicable Law; and (D) at least two Business Days prior to furnishing any nonpublic information to, or entering into discussions with, such Person, BYBK provides OLB with written notice of the identity of such Person and of BYBK’s intention to furnish nonpublic information to, or enter into discussions with, such Person and BYBK receives from such Person an executed confidentiality agreement in principleon terms no more favorable to such Person than the Confidentiality Agreement, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger which confidentiality agreement shall not provide such Person with any exclusive right to negotiate with BYBK. BYBK shall promptly provide to OLB any non-public information regarding BYBK or other similar document or Contract relating any BYBK Subsidiary provided to any Acquisition Inquiry other Person that was not previously provided to OLB, such additional information to be provided no later than the date of provision of such information to such other Person. BYBK shall promptly (and in any event within 24 hours) notify OLB in writing if any proposals or offers are received by, any information is requested from, or any negotiations or discussions are sought to be initiated or continued with, BYBK, any BYBK Subsidiary or any of their Representatives, in each case in connection with any Acquisition Proposal.
(b) Upon , and such notice shall indicate the execution hereof, Stockholder shall immediately cease and cause to be terminated all existing activities, name of the Person initiating such discussions or negotiations or making such proposal, offer or information request and the material terms and conditions of any proposals or offers (and, in the case of written materials relating to such proposal, offer, information request, negotiations or discussion, providing copies of such materials (including e-mails or other electronic communications)). BYBK agrees that it shall keep OLB informed, on a current basis, of the status and terms of any such proposal, offer, information request, negotiations or discussions (including any amendments or modifications to such proposal, offer or request). BYBK further agrees that it will provide OLB with the opportunity to present its own proposal to the BYBK board of directors in response to any parties (other than Parent such proposal or offer and its Affiliates) conducted heretofore negotiate with OLB in good faith with respect to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations)proposal.
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other hand.
Appears in 2 contracts
Sources: Merger Agreement (Old Line Bancshares Inc), Merger Agreement (Bay Bancorp, Inc.)
Acquisition Proposals. (a) Stockholder agrees that neither it nor any of its controlled Affiliates (other than the Company or its Subsidiaries) No Beneficial Entity shall, and it shall not authorize or permit cause its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, (i) solicit, initiate, encourageencourage (including by providing information or assistance), solicit, assist, facilitate or induce or facilitate the making, submission or announcement of any Acquisition Inquiry or Acquisition Proposal; , (ii) engage or participate in any discussions or negotiations regarding, or furnish or otherwise provide access cause to any information regarding any Acquired Company be furnished to any Person any confidential or nonpublic information or data in connection with, or take any other action to facilitate any inquiries or the making of any offer or proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal, except to notify a Person that has made or, to the Knowledge of Beneficial, is making any inquiries with respect to, or is considering making, an Acquisition Proposal, of the existence of the provisions of this Section 7.2, (iii) approve, agree to, accept, endorse or recommend any Acquisition Proposal, or (iv) approve, agree to, accept, endorse or recommend, or propose to approve, agree to, accept, endorse or recommend any Acquisition Agreement contemplating or otherwise relating to any Acquisition Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.2 by any Subsidiary or Representative of Beneficial shall constitute a breach of this Section 7.2 by Beneficial. In addition to the foregoing, Beneficial shall not submit to the vote of its stockholders any Acquisition Proposal other than the Merger.
(b) Notwithstanding anything to the contrary in Section 7.2(a), if Beneficial or any of its Representatives receives an unsolicited, bona fide written Acquisition Proposal by any Person at any time prior to the Beneficial Stockholder Approval that did not result from or arise in connection with a breach of Section 7.2(a), Beneficial and its Representatives may, prior to (but not after) the Beneficial Meeting, take the following actions if the board of directors of Beneficial (or any committee thereof) has (i) determined, in response its good faith judgment (after consultation with Beneficial’s financial advisors and outside legal counsel), that such Acquisition Proposal constitutes or would reasonably be expected to lead to a Superior Proposal and that the failure to take such actions would reasonably likely cause it to violate its fiduciary duties under applicable Law, and (ii) obtained from such Person an executed confidentiality agreement containing terms at least as restrictive with respect to such Person as the terms of the Confidentiality Agreement is in each provision with respect to WSFS (and such confidentiality agreement shall not provide such Person with any exclusive right to negotiate with Beneficial): (A) furnish information or data to (but only if Beneficial shall have provided such information to WSFS prior to furnishing it to any Acquisition Inquiry or Acquisition Proposal; such Person), and (iiiB) engage in enter into discussions or and negotiations with any with, such Person with respect to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principlesuch unsolicited, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or bona fide written Acquisition Proposal.
(bc) Upon Promptly (but in no event more than 24 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or any inquiry that would reasonably be expected to lead to any Acquisition Proposal, Beneficial shall advise WSFS in writing of the execution hereofreceipt of such Acquisition Proposal, Stockholder request or inquiry, and the terms and conditions of such Acquisition Proposal, request or inquiry (including, in each case, the identity of the Person making any such Acquisition Proposal, request or inquiry), and Beneficial shall as promptly as practicable provide to WSFS (i) a copy of such Acquisition Proposal, request or inquiry, if in writing, or (ii) a written summary of the material terms of such Acquisition Proposal, request or inquiry, if oral. Beneficial shall provide WSFS as promptly as practicable (but in no event more than 24 hours) with notice setting forth all such information as is necessary to keep WSFS informed on a current basis of all developments, discussions, negotiations and communications regarding (including amendments or proposed amendments to) such Acquisition Proposal, request or inquiry.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Beneficial Meeting, the board of directors of Beneficial may make a Change in the Beneficial Recommendation (including, for the avoidance of doubt, approving, endorsing or recommending any Acquisition Proposal), if (i) Beneficial has received a Superior Proposal (after giving effect to the terms of any revised offer by WSFS pursuant to this Section 7.2(d)), and (ii) the board of directors of Beneficial has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would be a violation of the directors’ fiduciary duties under applicable Law; provided, that the board of directors of Beneficial may not take the actions set forth in this Section 7.2(d) unless:
(i) Beneficial has complied in all material respects with this Section 7.2;
(ii) Beneficial has provided WSFS at least three Business Days prior written notice of its intention to take such action and a reasonable description of the events or circumstances giving rise to its determination to take such action (including all necessary information under Section 7.2(c));
(iii) during such three Business Day period, Beneficial has and has caused its financial advisors and outside legal counsel to, consider and negotiate with WSFS in good faith (to the extent WSFS desires to so negotiate) regarding any proposals, adjustments or modifications to the terms and conditions of this Agreement proposed by WSFS; and
(iv) the board of directors of Beneficial has determined in good faith, after consultation with outside legal counsel and considering the results of such negotiations and giving effect to any proposals, amendments or modifications proposed to by WSFS, if any, that such Superior Proposal remains a Superior Proposal and that failure to make a Change in the Beneficial Recommendation would be a violation of the director’s fiduciary duties under applicable Law and, in which event, the board of directors of Beneficial may communicate the basis for its lack of Beneficial Recommendation to its stockholders in the Joint Proxy/Prospectus or an appropriate amendment or supplement thereto to the extent required by Law; provided, that the resolution approving this Agreement as of the date hereof may not be rescinded or amended. Any material amendment to any Superior Proposal, will be deemed to be a new Superior Proposal for purposes of this Section 7.2(d) and will require a new determination and notice period as referred to in this Section 7.2(d).
(e) Notwithstanding anything herein to the contrary, at any time prior to the WSFS Meeting, the board of directors of WSFS may make a Change in the WSFS Recommendation, if the board of directors of WSFS has determined in good faith, after consultation with outside legal counsel, that the failure to take such action would be a violation of the directors’ fiduciary duties under applicable Law; provided, that the board of directors of WSFS may not take the actions set forth in this Section 7.2(e) unless:
(i) WSFS has provided Beneficial at least three Business Days prior written notice of its intention to take such action and a reasonable description of the events or circumstances giving rise to its determination to take such action;
(ii) during such three Business Day period, WSFS has and has caused its financial advisors and outside legal counsel to, consider and negotiate with Beneficial in good faith (to the extent Beneficial desires to so negotiate) regarding any proposals, adjustments or modifications to the terms and conditions of this Agreement proposed by Beneficial; and
(iii) the board of directors of WSFS has determined in good faith, after consultation with outside legal counsel and considering the results of such negotiations and giving effect to any proposals, amendments or modifications proposed by Beneficial, if any, that failure to make a Change in the WSFS Recommendation would be a violation of the director’s fiduciary duties under applicable Law and, in which event, the board of directors of WSFS may communicate the basis for its lack of WSFS Recommendation to its stockholders in the Joint Proxy/Prospectus or an appropriate amendment or supplement thereto to the extent required by Law; provided, that the resolution approving this Agreement as of the date hereof may not be rescinded or amended.
(f) Beneficial and Beneficial Subsidiaries shall, and Beneficial shall direct its Representatives to, (i) immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) Persons conducted heretofore with respect to any offer or proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Inquiry Proposal, (ii) request the prompt return or Acquisition Proposal or sale destruction of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and all confidential information previously furnished to any Person (other than Parent WSFS and its AffiliatesRepresentatives) that has made or indicated an intention to make an Acquisition Proposal, and (iii) not waive or amend any “standstill” provision or provisions of similar effect to which it is a party or of which it is a beneficiary and shall strictly enforce any such provisions.
(g) Nothing contained in this Agreement shall prevent Beneficial or its board of directors from complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act or Item 1012(a) of Regulation M-A with respect to an Acquisition Proposal or from making any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect legally required disclosure to the transfer stockholders of Shares permitted by Section 2.3Beneficial; provided, that such rules will in no way eliminate or (ii) with respect modify the effect that any action pursuant to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other handsuch rules would otherwise have under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (WSFS Financial Corp), Merger Agreement (Beneficial Bancorp Inc.)
Acquisition Proposals. (a) Stockholder agrees that neither it nor any of its controlled Affiliates (other than the Company or its Subsidiaries) shallSeller shall not, and shall cause its Subsidiaries and its and its Subsidiaries' officers, directors, agents, advisors and affiliates not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly solicit or indirectlyencourage inquiries or proposals with respect to, (i) initiate, encourage, solicit, assist, induce or facilitate the making, submission or announcement of any Acquisition Inquiry or Acquisition Proposal; (ii) furnish or otherwise provide access to any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in any negotiations concerning, or provide any confidential information to, or have any discussions or negotiations with with, any Person with respect to person relating to, any Acquisition Inquiry or Acquisition Takeover Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition Proposal.
(b) Upon the execution hereof, Stockholder . Seller shall immediately cease and cause to be terminated all existing any activities, discussions or negotiations conducted prior to the date of this Agreement with any parties (other than Parent and its Affiliates) conducted heretofore Acquirer with respect to any Acquisition Inquiry or Acquisition of the foregoing. Seller shall promptly (within 24 hours) advise Acquirer following the receipt by Seller of any Takeover Proposal or sale and the substance thereof (including the identity of Shares held by Stockholderthe person making such Takeover Proposal), and shall refrain from engaging in advise the Acquirer of any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) developments with respect to any sale such Takeover Proposal immediately upon the occurrence thereof. Notwithstanding the first sentence of any Shares held by Stockholder (other than this Section 6.06(a), in the event that, prior to state the date of the Seller Meeting, the Seller Board determines in good faith and in conformity with the written advice of outside counsel, after Seller has received an unsolicited Takeover Proposal that Stockholder is currently not permitted a Superior Proposal, that the failure to engage do so would result in such a breach of Seller Board's fiduciary duties to Seller's shareholders, Seller may, in response to an unsolicited request therefor, furnish information with respect to the Seller to, and enter into discussions or negotiations)with, the party making the Superior Proposal pursuant to a customary confidentiality agreement.
(cb) Except as expressly permitted by this Section 6.06(b), the Seller Board may not (i) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Acquirer, the approval or recommendation by the Seller Board of the Merger or this Agreement, (ii) approve or recommend, or propose publicly to approve or recommend, any Takeover Proposal, or (iii) cause or authorize Seller to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to any Takeover Proposal. Notwithstanding the foregoing, in the restrictions event that prior to the date of the Seller Meeting, the Seller Board determines in good faith, after the Seller has received a Superior Proposal and in conformity with the written advice of outside counsel, that failure to do so would result in a breach of its fiduciary duties to the Seller's shareholders under applicable law, the Seller Board may upon not less than three business days notice to Acquirer of Seller Board's intention to do so withdraw or modify or propose publicly to withdraw or modify its approval or recommendation of the Merger or this Section 5.2 Agreement. Such withdrawal or modification shall not apply (i) with respect affect the Seller's obligation to any discussions or negotiations with respect to convene the transfer of Shares permitted Seller Meeting as required by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other hand6.02.
Appears in 2 contracts
Sources: Merger Agreement (Us Bancorp \De\), Merger Agreement (Western Bancorp)
Acquisition Proposals. (a) Stockholder agrees that From the date of this Agreement until the Closing Date or, if earlier, the termination of this Agreement, neither it the Acquiror nor any of its controlled Affiliates (other than the Company or its Subsidiaries) shallAcquiror Principal Shareholder will, and shall not neither the Acquiror nor the Acquiror Principal Shareholder will authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative the any representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged Acquiror or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) Acquiror Principal Shareholder to, directly or indirectly, : (i) solicit, initiate, knowingly encourage, solicit, assist, induce or facilitate the making, submission or announcement of any Acquisition Inquiry Competing Transaction Proposal from any Person (other than Acquiree or Acquisition the Acquiree Shareholders, a “Third Party”) or take any action that could reasonably be expected to lead to a Competing Transaction Proposal; , (ii) furnish or otherwise provide access to any information regarding any Acquired Company the Acquiror or the Acquiror Subsidiary to any Person Third Party in connection with or in response to any Acquisition Inquiry a Competing Transaction Proposal or Acquisition Proposal; an inquiry or indication of interest, (iii) engage in or continue any discussions or negotiations with any Person Third Party with respect to any Acquisition Inquiry or Acquisition Competing Transaction Proposal; or , (iv) otherwise facilitate approve, endorse or recommend any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Competing Transaction Proposal or (v) enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement intent or other similar document or any Contract contemplating or otherwise relating to any Acquisition Inquiry or Acquisition Competing Transaction Proposal.
(b) Upon Concurrently with the execution hereofof this Agreement, Stockholder Acquiror and the Acquiror Principal Shareholder shall (i) immediately cease and cause to be terminated all any existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect Person that relate to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or Competing Transaction Proposal; (ii) as soon as practicable request each Person that has executed, within twelve (12) months prior to the date of this Agreement, a confidentiality agreement in connection with respect its consideration of a possible Competing Transaction Proposal to return or destroy all confidential information relating to the Acquiror or the Acquiror Subsidiary heretofore furnished to such Person by or on behalf of the Acquiror Principal Shareholder or the Acquiror, subject to whatever rights, if any, that such Person has to retain any discussions such information or avoid any demand for its return or destruction pursuant to the terms of the confidentiality agreement between such Person and the StockholderAcquiror Principal Shareholder or the Acquiror; and (iii) cause any physical or virtual data room containing any such information to no longer be accessible to or by any Person other than Acquiree, on the one hand, Acquiree Shareholders and any Affiliate or Representative of Stockholder on the other handtheir respective representatives.
Appears in 2 contracts
Sources: Share Exchange Agreement (Moving Box Inc), Share Exchange Agreement (RPM Dental, Inc.)
Acquisition Proposals. (a) Stockholder Company agrees that neither that, prior to the Effective Time, it will not, directly or indirectly, nor will it permit any of its controlled Affiliates (other than the Company or its Subsidiaries) shallSubsidiaries to, and shall not nor will it authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an any officer, director or employee of, or any investment banker, attorney, accountant or other advisor, agent or representative of, Company or any of its Subsidiaries (collectively, the Company"Company Representatives") to, directly or indirectlyindirectly through another Person, (i) solicit, initiate, encourage, solicit, assist, induce or facilitate the making, submission or announcement of any Acquisition Inquiry Proposal, or Acquisition Proposal; (ii) participate in any discussions or negotiations regarding, or furnish or otherwise provide access to any information regarding any Acquired Company to any Person in connection any information with respect to, or in response take any other action to facilitate any inquiries or the making of any proposal that constitutes, or would reasonably be expected to lead to, any Acquisition Inquiry Proposal, or approve, endorse or recommend any Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal , or enter into any letter of intent, agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract contract contemplating or otherwise relating to any Acquisition Inquiry or an Acquisition Proposal; provided, however, that, prior to the adoption and approval of this Agreement by the requisite Company Stockholder Approval, the foregoing will not prohibit Company from furnishing information to or entering into discussions or negotiations with, any Person that makes an unsolicited bona fide proposal to enter into a business combination with Company pursuant to an Acquisition Proposal for more than 50% of any class of equity securities of Company or any of its Subsidiaries or more than 50% of the net revenues, net income or the assets of Company and its Subsidiaries taken as a whole, which the Company Special Committee in good faith determines (after consultation with a financial advisor of nationally recognized reputation) is more favorable from a financial point of view to Company's stockholders than the transactions contemplated by this Agreement (a "Superior Proposal"), so long as:
(i) prior to furnishing any information to, or entering into discussions or negotiations with, such a Person, Company provides 24 hours' advance written notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, a Person from whom Company will have received an executed confidentiality agreement in form and substance similar to (and in no event any less favorable to Company than) the Confidentiality Agreement prior to furnishing such information;
(ii) such notice shall include the terms and conditions of such Acquisition Proposal or any agreement proposed by, or any information supplied to, any such Person;
(iii) prior to furnishing any nonpublic information to any such Person, Company furnishes such nonpublic information to Parent (to the extent that such nonpublic information has not been previously furnished by Company to Parent);
(iv) neither Company nor any of its Subsidiaries nor any of Company Representatives will have violated any of the restrictions set forth in this Section 7.4;
(v) such unsolicited bona fide proposal relating to a Superior Proposal is made by a third party that the Company Special Committee determines in good faith has the good faith intent to proceed with negotiations to consider, and the financial capability to consummate, such Superior Proposal;
(vi) the Board of Directors of Company or the Company Special Committee, after duly considering the advice of outside legal counsel to the Board of Directors of Company or the Company Special Committee, as the case may be, determines in good faith that such action is required for the Board of Directors of Company and/or the Company Special Committee to comply with their respective fiduciary duties to stockholders imposed by applicable law; and
(vii) Company uses its reasonable efforts to keep Parent informed in all material respects of the status and terms of any such negotiations or discussions (including the identity of the Person with whom such negotiations or discussions are being held) and provides Parent copies of such written proposals and any amendments or revisions thereto or correspondence related thereto.
(b) Upon Company shall notify Parent orally and in writing of the execution hereoffact that it received inquiries, Stockholder offers or proposals that it reasonably believes to be bona fide with respect to an Acquisition Proposal within 24 hours after Company obtains knowledge of the receipt thereof. Company shall immediately cease and cause to be terminated all any existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) Person that have been conducted heretofore with respect to a potential Acquisition Proposal. Company agrees to inform Company Representatives of the obligations undertaken in this Section 7.4; provided, however, that nothing contained in this Agreement will prevent the Board of Directors of Company or the Company Special Committee from referring any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect third-party to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations)this Section 7.4.
(c) Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, "standstill" or similar agreement to which Company or any of its Subsidiaries is a party, and shall use its reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
(d) Except as expressly permitted by this Section 7.4, neither the Board of Directors of Company nor any committee thereof shall (i) withdraw, modify or change, or propose publicly to withdraw, modify or change, in a manner adverse to Parent, the approval or recommendation by such Board of Directors or such committee of this Agreement or the Merger, (ii) approve or recommend, or propose publicly to approve or recommend, any Superior Proposal or (iii) cause Company to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, in the restrictions event that the Board of Directors of Company or the Company Special Committee determines in good faith, after consultation with outside legal counsel, that it is necessary to do so in order to act in a manner consistent with its fiduciary duties to Company stockholders (other than the Company stockholders entering into the Parent Voting Agreements and their Affiliates) under applicable law, the Board of Directors of Company and/or the Company Special Committee may (subject to this sentence and Section 7.4(e)) withdraw, modify or change their respective recommendation of the Merger, but only after two Business Days following Parent's receipt of written notice advising Parent that the Board of Directors of Company or the Company Special Committee is prepared to do so, and only if, during such two Business Day period, Company and its advisors have negotiated or attempted to negotiate in good faith with Parent to make such adjustments in the terms and conditions of this Agreement as would enable the Board of Directors of Company or the Company Special Committee to maintain its recommendation in favor of this Agreement.
(e) Nothing contained in this Section 5.2 shall not apply (i7.4 will prohibit Company from taking and disclosing to its stockholders a position contemplated by Rule 14d-9 and/or 14e-2(a) promulgated under the Exchange Act or from making any disclosure to Company's stockholders if, in the good faith judgment of the Board of Directors of Company or the Company Special Committee, after consultation with respect to any discussions or negotiations with respect outside legal counsel to the transfer Board of Shares permitted by Section 2.3Directors of Company or the Company Special Committee, or (ii) as the case may be, failure so to disclose would be inconsistent with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other handits obligations under applicable law.
Appears in 2 contracts
Sources: Merger Agreement (Bruker Daltonics Inc), Merger Agreement (Bruker Axs Inc)
Acquisition Proposals. (a) Stockholder agrees that neither it Until the earlier of the Effective Time and the termination of this Agreement pursuant to Article VIII, the Company shall not, nor shall the Company permit any of its controlled Affiliates (other than Subsidiaries or the officers, directors, employees, representatives or agents of the Company or its Subsidiaries) shall, and shall not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) Subsidiaries to, directly or indirectly, (i) initiate, encourage, solicit, assistinitiate or knowingly encourage (including by way of furnishing non-public information or providing access to its properties, induce books, records or facilitate personnel) any inquiries regarding, or the making, submission or announcement making of any proposal or offer that constitutes, or could reasonably be expected to lead to, an Acquisition Inquiry Proposal or Acquisition Proposal; (ii) furnish have any discussions or otherwise provide access participate in any negotiations regarding an Acquisition Proposal, or execute or enter into any agreement, understanding or arrangement with respect to an Acquisition Proposal, or approve or recommend or propose to approve or recommend an Acquisition Proposal or any information regarding agreement, understanding or arrangement relating to an Acquisition Proposal (or resolve or authorize or propose to agree to do any Acquired Company to any Person of the foregoing actions) or (iii) other than in connection with or in response the Merger and the Other Transactions, take any action to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with exempt any Person with respect from the restrictions on “business combinations” contained in Section 203 of the DGCL or otherwise cause such restrictions not to any Acquisition Inquiry or Acquisition Proposal; apply or (iv) otherwise facilitate waive, terminate, modify or fail to enforce any effort provisions of any Standstill Agreement or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter similar obligation into which any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition ProposalPerson has entered.
(b) Upon Notwithstanding Section 6.04(a), if, prior to obtaining the execution hereofStockholder Approval (i) the Company receives an Acquisition Proposal by any Person, Stockholder and (ii) the Company Board determines in good faith, (A) after consultation with its financial advisor, that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal and (B) after consultation with outside legal counsel, that the failure to take the actions set forth in clauses (x) and (y) below with respect to such Acquisition Proposal could result in a breach of the fiduciary obligations of the members of the Company Board or any applicable Law, the Company may, in response to such Acquisition Proposal, (x) furnish non-public information with respect to the Company to the Person who has made such Acquisition Proposal pursuant to a Confidentiality Agreements on terms substantially similar to and no more favorable to such Person than those contained in the Confidentiality Agreements; and (y) participate in discussions and negotiations regarding such Acquisition Proposal. The Company shall immediately cease advise Parent orally and cause in writing of the receipt of any Acquisition Proposal or any inquiry with respect to, or that could reasonably be expected to be terminated lead to, any Acquisition Proposal (in each case within one business day of receipt thereof), specifying the material terms and conditions thereof, the identity of the party making such Acquisition Proposal or inquiry, a copy of all existing activities, discussions written materials provided to the Company or negotiations any of its Subsidiaries in connection with any parties such Acquisition Proposal and a copy of any information provided by the Company to such Person in connection with such Acquisition Proposal that has not previously been provided to Parent. The Company agrees that it and its Subsidiaries will not enter into any Confidentiality Agreements with any Person subsequent to the date hereof which prohibits the Company from providing such information to Parent. The Company shall notify Parent (within one business day) orally and in writing of any material modifications to the financial or other material terms of such Acquisition Proposal or inquiry and shall provide to Parent, within one business day, a copy of all written materials subsequently provided to or by the Company or any Subsidiary in connection with any such Acquisition Proposal. For purposes of this Agreement, “Acquisition Proposal” means any proposal or offer from any Person or group (other than Parent and its Affiliates) conducted heretofore with respect relating to any Acquisition Inquiry direct or Acquisition Proposal indirect acquisition or sale purchase of Shares held by Stockholder20% or more of the assets of the Company and its Subsidiaries, and shall refrain from engaging taken as a whole, or 20% or more of any class of equity securities of the Company then outstanding, any tender offer or exchange offer that if consummated would result in any future discussions Person beneficially owning 20% or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale more of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding class of equity securities of the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one handCompany then outstanding, and any Affiliate merger, consolidation, business combination, recapitalization, liquidation, dissolution or Representative of Stockholder on similar transaction involving the Company, other handthan the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Transmontaigne Inc), Agreement and Plan of Merger (Transmontaigne Inc)
Acquisition Proposals. (a) Stockholder agrees that neither it nor any of TRBI will not, and will cause its controlled Affiliates (other than the Company or Subsidiaries and its and its Subsidiaries) shall’ officers, directors, agents, advisors and shall affiliates not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, (i) initiate, encourage, solicit, assistencourage or knowingly facilitate inquiries or proposals with respect to, induce or facilitate the makingengage in any negotiations concerning, submission or announcement of provide any confidential or nonpublic information or data to, or have any discussions with, any person relating to, any Acquisition Inquiry or Proposal, provided that, in the event TRBI receives an unsolicited bona fide Acquisition Proposal; , including from an Other Person (iias defined below) after the execution of this Agreement, and the TRBI Board concludes in good faith that such Acquisition Proposal constitutes a Superior Proposal, TRBI may, and may permit its Subsidiaries and its and its Subsidiaries’ Representatives to, furnish or otherwise provide access cause to be furnished nonpublic information and participate in such negotiations or discussions to the extent that the TRBI Board concludes in good faith (and based on the advice of counsel) that failure to take such actions would more likely than not result in a violation of its fiduciary duties under applicable law; provided further, that prior to providing any nonpublic information permitted to be provided pursuant to the foregoing proviso, it shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement (without regard to any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition Proposal.
(b) Upon the execution hereof, Stockholder shall modification thereof pursuant hereto). TRBI will immediately cease and cause to be terminated all existing any activities, discussions or negotiations conducted before the date of this Agreement with any parties (persons other than Parent and its AffiliatesBBVA (“Other Persons”) conducted heretofore with respect to any Acquisition Inquiry Proposal and will use its reasonable best efforts to enforce any confidentiality or similar agreement relating to an Acquisition Proposal. TRBI will promptly (within 24 hours) advise BBVA following receipt of any Acquisition Proposal or sale and the substance thereof (including the identity of Shares held by Stockholderthe person making such Acquisition Proposal), and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale will keep BBVA apprised of any Shares held by Stockholder related developments, discussions and negotiations (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations)including the terms and conditions of the Acquisition Proposal) on a current basis.
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other hand.
Appears in 2 contracts
Sources: Merger Agreement (Texas Regional Bancshares Inc), Merger Agreement (Texas Regional Bancshares Inc)
Acquisition Proposals. (a) Stockholder agrees that neither it nor any Subject to Section 6.3(b), Section 6.3(d) and Section 6.3(e), until the Acceptance Time or, if earlier, the termination of its controlled Affiliates (other than this Agreement in accordance with ARTICLE VIII, the Company or will not, will cause its Subsidiaries) shallSubsidiaries not to, and shall not authorize or permit will use reasonable best efforts to cause its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, : (i) initiate, encourage, solicit, assistknowingly encourage (including by way of furnishing non-public information), knowingly facilitate or knowingly induce or facilitate take any other action designed to lead to, any inquiries or the makingmaking of any proposal that constitutes, or would reasonably be expected to lead to, the submission or announcement of any Acquisition Inquiry Proposal or Acquisition Proposal; (ii) engage, enter into, continue or participate in any negotiations or discussions with respect thereto or furnish or otherwise provide access to any non-public information regarding any Acquired concerning the Company and its Subsidiaries to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; , (iiiii) engage in discussions or negotiations with any Person with respect except for a confidentiality agreement contemplated pursuant to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or Section 6.3(b), enter into any agreement in principlemerger agreement, letter of intent, memorandum of understandingagreement in principle, term sheetshare purchase agreement, acquisition asset purchase agreement or share exchange agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract agreement relating to an Acquisition Proposal (an “Acquisition Agreement”), or (iii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Parent or Purchaser, the Company Board Recommendation or publicly recommend the approval or adoption of, or publicly approve or adopt, or propose to publicly recommend, approve or adopt, any Acquisition Inquiry or Acquisition Proposal.
Proposal (bany action described in this clause (iii) Upon the execution hereof, Stockholder shall immediately being referred to as a “Change of Board Recommendation”). The Company will cease and cause to be terminated all existing activitiesany solicitation, discussions discussion or negotiations negotiation with any parties (other than Parent and Person conducted prior to the date of this Agreement by the Company, its Affiliates) conducted heretofore Subsidiaries or any of its Representatives with respect to any Acquisition Inquiry Proposal and will request the return or destruction of all confidential information provided by or on behalf of the Company or its Subsidiaries to any such Person.
(b) Notwithstanding anything to the contrary contained in Section 6.3(a), if at any time following the date of this Agreement and prior to the Acceptance Time, (i) the Company has received a written Acquisition Proposal that the Company Board believes in good faith is bona fide, (ii) the Company Board, after consultation with its financial advisors and outside legal counsel, determines in good faith that such Acquisition Proposal constitutes or sale would reasonably be expected to lead to or result in a Superior Proposal and (iii) such Acquisition Proposal did not result from a material breach of Shares held by Stockholderthis Section 6.3, then the Company may, subject to clauses (x) and shall refrain from engaging (y) below, (A) furnish information with respect to the Company and its Subsidiaries to the Person making such Acquisition Proposal and (B) participate in any future discussions or negotiations between Stockholder regarding such Acquisition Proposal; provided, that (x) the Company will not, and will use reasonable best efforts to not allow its Representatives to, disclose any non-public information to such Person (other unless the Company has, or first enters into, a confidentiality agreement with such Person with confidentiality provisions that are not less restrictive to such Person than the provisions of the Confidentiality Agreement are to Parent and that would not prohibit compliance by the Company with the provisions of this Section 6.3 (an “Acceptable Confidentiality Agreement”) (a copy of which shall be provided to Parent promptly after its Affiliatesexecution), and (y) the Company will provide to Parent any non-public information concerning the Company or its Subsidiaries that was not previously provided or made available to Parent prior to or concurrently with respect providing or making available such non-public information to any sale of any Shares held by Stockholder (such other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations)Person.
(c) Notwithstanding Prior to the foregoingAcceptance Time, the restrictions Company will promptly (and in this Section 5.2 shall not apply any event within forty-eight (i48) with respect to hours) notify Parent if any proposal, offer or inquiry is received by, or any discussions or negotiations are sought to be initiated or continued with, the Company in respect of any Acquisition Proposal. The Company will provide Parent promptly (and in any event within such forty-eight (48) hour period) the identity of the Person making such proposal, offer, inquiry or other contact and the material terms and conditions of any proposals or offers (and shall include with such notice copies of any written materials received from or on behalf of such Person relating to such proposal, offer, inquiry or request) and thereafter shall promptly keep Parent informed of all material developments of any such proposals, offers, inquiries, or requests (and the Company shall provide Parent with copies of any additional written materials received that revise, in any material respect, such proposals or offers, inquiries, or requests).
(d) Notwithstanding anything in Section 6.3 to the contrary, if (i) the Company receives a written Acquisition Proposal that the Company Board believes in good faith is bona fide, and (ii) the Company Board, after consultation with its financial advisors and outside legal counsel, concludes in good faith such Acquisition Proposal constitutes a Superior Proposal, then, subject to compliance with Section 8.5, the Company Board may at any time prior to the Acceptance Time, if it determines in good faith, after consultation with outside counsel, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law, (x) effect a Change of Board Recommendation and/or (y) (A) in the event such Acquisition Proposal did not result from a material breach of this Section 6.3 or (B) in the event such Acquisition Proposal did result from a material breach of this Section 6.3 and on the Expiration Date occurring after such breach all Offer Conditions except the Minimum Tender Condition had been satisfied or waived, terminate this Agreement and concurrent with such termination cause the Company to enter into an Acquisition Agreement with respect to such Superior Proposal; provided, however, that the Company Board may not effect a Change of Board Recommendation pursuant to the foregoing clause (x) or terminate this Agreement pursuant to the foregoing clause (y) unless the Company has provided prior written notice to Parent specifying in reasonable detail the reasons for such action (including a description of the material terms of such Acquisition Proposal and delivering to Parent a copy of the Acquisition Agreement and other relevant documents for such Superior Proposal in the form to be entered into), at least three (3) Business Days in advance of its intention to take such action with respect to such Superior Proposal, unless there are less than three (3) Business Days prior to the then scheduled Expiration Date, in which case, the Company will provide such written notice as far in advance of the then scheduled Expiration Date as practicable (the period inclusive of all such days, the “Notice Period”) (it being understood and agreed that (i) during the Notice Period the Company shall, and shall cause its financial advisors and outside legal counsel to, negotiate with Parent in good faith (to the extent Parent desires to negotiate), (ii) the Company shall take into account all changes to the terms of this Agreement irrevocably proposed by Parent in determining whether such Acquisition Proposal continues to constitute a Superior Proposal and (iii) any amendment, in any material respect, to the terms of such Superior Proposal shall require a new notice pursuant to this Section 6.3(d) and a forty-eight (48) hour extension (from the time Parent receives such notice) of the Notice Period then applicable). After delivery of such written notice pursuant to the immediately preceding sentence, the Company shall promptly keep Parent informed of all material developments affecting the material terms of any such Superior Proposal (and the Company shall provide Parent with copies of any additional written materials received that relate to such Superior Proposals).
(e) Notwithstanding anything in Section 6.3(a) to the contrary, the Company Board may, at any time prior to the Acceptance Time, effect a Change of Board Recommendation in response to an Intervening Event if the Company Board concludes in good faith, after consultation with outside counsel, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law. An “Intervening Event” means, with respect to the transfer Company, a material event or circumstance that arises or occurs after the date of Shares permitted this Agreement and was not, prior to the date of this Agreement, reasonably foreseeable by Section 2.3the Company Board; provided, however, that in no event shall the receipt, existence or (ii) with respect to terms of an Acquisition Proposal or any discussions between the Stockholder, on the one hand, and any Affiliate matter relating thereto or Representative of Stockholder on the other handconsequence thereof constitute an Intervening Event.
Appears in 2 contracts
Sources: Merger Agreement (Genzyme Corp), Agreement and Plan of Merger (Sanofi-Aventis)
Acquisition Proposals. From the date hereof until the Closing Date or, if earlier, the termination of this Agreement in accordance with Article X, the Company and its Subsidiaries shall not, and the Company shall instruct and use its reasonable best efforts to cause its representatives, not to (a) Stockholder agrees that neither it nor any of its controlled Affiliates (other than the Company or its Subsidiaries) shall, and shall not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, (i) initiate, encourage, solicit, assist, induce initiate or facilitate the making, submission or announcement of participate in any Acquisition Inquiry or Acquisition Proposal; (ii) furnish or otherwise provide access to any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to, or provide any non-public information or data concerning the Company or any of the Company’s Subsidiaries to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement Person relating to, an Acquisition Inquiry or Acquisition Proposal or afford to any Person access to the business, properties, assets or personnel of the Company or any of the Company’s Subsidiaries in connection with an Acquisition Proposal, (b) enter into any acquisition agreement, merger agreement in principleor similar definitive agreement, or any letter of intent, memorandum of understandingunderstanding or agreement in principle, term sheetor any other agreement relating to an Acquisition Proposal, acquisition agreement(c) grant any waiver, option agreement, joint venture agreement, partnership agreement, merger amendment or release under any confidentiality agreement or other similar document the anti-takeover laws of any state, or Contract relating (d) otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to any Acquisition Inquiry or make an Acquisition Proposal.
(b) Upon . From and after the execution date hereof, Stockholder the Company shall, and shall instruct its officers and directors to, and the Company shall instruct and cause its representatives, its Subsidiaries and their respective representatives to, immediately cease and cause to be terminated terminate all existing activities, discussions or and negotiations with any parties (other than Parent and its Affiliates) conducted heretofore Persons that may be ongoing with respect to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent Acquiror and its Affiliates) representatives). The Company shall promptly notify Acquiror if any Person makes any written proposal, offer or inquiry with respect to any sale an Acquisition Proposal and provide Acquiror with a description of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect material terms and conditions thereof to the transfer extent that such disclosure would not result in breach of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on Company’s confidentiality obligations that are in existence as of the one hand, and any Affiliate or Representative of Stockholder on the other handdate hereof.
Appears in 2 contracts
Sources: Merger Agreement (Xos, Inc.), Merger Agreement (NextGen Acquisition Corp)
Acquisition Proposals. (a) Stockholder The Seller agrees that neither it nor any of its controlled Affiliates (other than the Company or its Subsidiaries) shallwill not, and shall not authorize or permit its Representatives (that it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of will cause the Company and each of their affiliates and Applicable Representatives not as an officer, director or employee of the Company) to, directly or indirectly, indirectly (i) initiate, encourage, solicit, assist, induce knowingly encourage or knowingly facilitate the making, submission inquiries or announcement of any Acquisition Inquiry or Acquisition Proposal; (ii) furnish or otherwise provide access to any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person proposals with respect to any Acquisition Inquiry Proposal, (ii) engage or participate in any negotiations with any Person concerning any Acquisition Proposal; or , (iviii) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry Proposal, (iv) approve or recommend any Acquisition Proposal or (v) provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any Person relating to any Acquisition Proposal.
(b) Upon . The Seller agrees to, and to cause the execution hereofCompany and each of their affiliates and Applicable Representatives to, Stockholder shall immediately cease and cause to be terminated all existing any activities, discussions or negotiations conducted before the date of this Agreement with any parties (Person other than Parent and its Affiliates) conducted heretofore Buyer with respect to any Acquisition Inquiry Proposal. The Seller will promptly (within twenty-four (24) hours) notify Buyer following receipt by the Seller, the Company or any of their affiliates or Applicable Representatives of any Acquisition Proposal or sale of Shares held any request for nonpublic information relating to the Company or any Company Subsidiaries by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding informs the foregoingSeller, the restrictions in this Section 5.2 shall not apply (i) with respect Company or any of their affiliates or Applicable Representatives that such Person is considering making, or has made, an Acquisition Proposal, or any inquiry from any Person seeking to any have discussions or negotiations with respect the Seller, the Company or any of their affiliates or Applicable Representatives relating to a possible Acquisition Proposal. Such notice shall be made orally and confirmed in writing and shall indicate the transfer identity of Shares permitted the Person making the Acquisition Proposal, inquiry or request and the material terms and conditions thereof. The Seller shall be bound by its obligations described in the first sentence of this Section 2.37.6 with regard to any such proposals, offers, discussions or negotiations and shall promptly inform Buyer of any amendments to or revisions of the material terms of such Acquisition Proposal. The Seller shall, and shall cause the Company and their affiliates and Applicable Representatives to, use their reasonable efforts to enforce any existing confidentiality or standstill agreements to which the Seller, the Company or any of their affiliates and Applicable Representatives is a party in accordance with the terms thereof. As used in this Agreement, “Acquisition Proposal” shall mean, other than the transactions contemplated by this Agreement, any offer, proposal or inquiry relating to, (i) any acquisition or purchase, direct or indirect, of 20% or more of the consolidated assets of the Company and Company Subsidiaries or any equity or voting securities of the Company or Company Subsidiaries, as applicable or (ii) with a merger, consolidation, share exchange or other business combination involving the Company or Company Subsidiaries. With respect to any the Persons with whom discussions between or negotiations have been terminated, the Stockholder, on the one handSeller shall, and shall cause the Company and their affiliates and Applicable Representatives to, (x) use their reasonable best efforts to obtain the return or destruction of, in accordance with the terms of an applicable confidentiality agreement, any Affiliate confidential information previously furnished to any such Person or Representative any of Stockholder on the other handits affiliates or representatives and (y) promptly terminate all physical and electronic data room access previously granted to any such Persons.
Appears in 2 contracts
Sources: Equity Purchase Agreement (Sanmina Corp), Equity Purchase Agreement (Advanced Micro Devices Inc)
Acquisition Proposals. (a) Stockholder agrees that neither it nor any of its controlled Affiliates (other than Subject to Section 6.3(b), the Company or its Subsidiaries) shallshall not, and shall cause its Subsidiaries and Representatives not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, from the date hereof until the Purchase Time: (i) initiate, encourage, solicit, assist, induce solicit or facilitate knowingly encourage (including by way of providing non-public information) the making, submission or announcement of any Acquisition Inquiry Proposal or Acquisition Proposal; (ii) furnish or otherwise provide access to any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in any discussions or negotiations with respect thereto or otherwise cooperate with or assist or participate in, or knowingly facilitate any Person with respect to any Acquisition Inquiry or such Acquisition Proposal; , (ii) approve or (iv) otherwise facilitate any effort recommend, or attempt publicly propose to make approve or implement recommend, an Acquisition Inquiry Proposal or, except for a confidentiality agreement contemplated pursuant to Section 6.3(b), enter into any merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement or share exchange agreement, option agreement or other similar agreement relating to an Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document agreement in principle requiring the Company (whether or Contract relating not subject to conditions) to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, (iii) withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in a manner adverse to Parent or Purchaser, the Company Board Recommendation (a “Change of Board Recommendation”), or (iv) resolve, publicly propose or agree to do any Acquisition Inquiry of the actions described in clause (i), (ii) or Acquisition Proposal.
(biii) Upon the execution hereof, Stockholder of this sentence. The Company shall immediately cease and cause to be terminated all existing activitiesany solicitation, discussions encouragement, discussion or negotiations negotiation with any parties (other than Parent and its Affiliates) Persons conducted heretofore by the Company, its Subsidiaries or any of its Representatives with respect to any Acquisition Inquiry Proposal and shall reasonably promptly request (or, to the extent the Company is contractually permitted to do so, require) the return or destruction of all confidential information provided by or on behalf of the Company or any of its Subsidiaries to any such Person.
(b) Notwithstanding anything to the contrary contained in Section 6.3(a), if at any time following the date of this Agreement and prior to the Purchase Time, (i) the Company has received a written Acquisition Proposal or sale from a third party that is not in violation of Shares held such third party’s contractual obligations to the Company and that the Company Board believes in good faith is bona fide, (ii) an intentional breach by Stockholderthe Company of this Section 6.3 has not contributed to the making of such Acquisition Proposal, and shall refrain from engaging (iii) the Company Board determines in any future good faith that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal, then the Company may, subject to clauses (x) and (y) below, (A) furnish information with respect to the Company and its Subsidiaries to the Person making such Acquisition Proposal, and (B) participate in discussions or negotiations with the Person making such Acquisition Proposal regarding such Acquisition Proposal; provided, that (x) the Company will not, and will not allow its Representatives to, disclose any non-public information to such Person unless the Company has, or first enters into, a confidentiality agreement with such Person no less favorable to the Company than the confidentiality agreement, dated as of February 6, 2006, as amended, by and between Stockholder the Company and Parent, and (y) the Company will, as promptly as reasonably practicable, provide to Parent any non-public information concerning the Company or its Subsidiaries provided or made available to such other Person (other than Parent and its Affiliates) with respect which was not previously provided or made available to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations)Parent.
(c) Notwithstanding From and after the foregoingdate hereof and prior to the Purchase Time, the restrictions Company shall promptly (and in this Section 5.2 shall not apply any event within twenty-four (24) hours) notify Parent in the event that the Company or any of its Subsidiaries or Representatives receives (i) with respect any Acquisition Proposal or indication by any Person that it is considering making an Acquisition Proposal, (ii) any request for non-public information relating to the Company or any of its Subsidiaries that, to the knowledge of the Company, are related to any actual or potential Acquisition Proposal or (iii) any inquiry or request for discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or (ii) with respect to regarding any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other hand.Acquisition
Appears in 2 contracts
Sources: Merger Agreement (Sirtris Pharmaceuticals, Inc.), Merger Agreement (Glaxosmithkline PLC)
Acquisition Proposals. (a) Stockholder agrees that neither Seller shall keep Buyer reasonably informed regarding any Acquisition Proposal received by or any information related to an Acquisition Proposal requested from it nor or any of its controlled Affiliates (other than Representatives, including regarding the Company or its Subsidiaries) shall, and shall not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative identity of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in hismaking the Acquisition Proposal, her or its capacity as a stockholder of the Company terms and not as an officer, director or employee of the Company) to, directly or indirectly, (i) initiate, encourage, solicit, assist, induce or facilitate the making, submission or announcement conditions of any such Acquisition Inquiry Proposal or Acquisition Proposal; (ii) furnish or otherwise provide access to any request for information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or and the status of negotiations with any Person with respect to any Acquisition Inquiry or such Acquisition Proposal; or (iv) otherwise facilitate , in each case, material to the consummation of the Transactions, and in any effort or attempt event Seller shall provide written notice to make or implement an Acquisition Inquiry or Buyer of the initial receipt of any written Acquisition Proposal or enter into any agreement in principle, letter within 48 hours of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition Proposalsuch event.
(b) Upon the execution hereof, Stockholder Seller shall immediately cease and cause to be terminated all existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect to only enter into any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).if:
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) the definitive agreements providing for such Acquisition Proposal do not prohibit the consummation of the Transactions in accordance with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3terms and conditions set forth in this Agreement, or and
(ii) in the event that the Closing Date occurs, or is reasonably expected to occur, after the consummation of such Acquisition Proposal, Buyer and Seller jointly select a third party escrow agent (the “Seller Change of Control Escrow Agent”) and, prior to completion of the Acquisition Proposal, jointly agree an escrow agreement (the “Seller Change of Control Escrow Agreement”) that contemplates the Share Consideration (which, in accordance with respect its terms, shall be converted to any discussions between the StockholderBuyer Ordinary Shares) to be delivered by Buyer, on behalf of Seller, to the Seller Change of Control Escrow Agent within one hand(1) Business Day of the Closing Date in satisfaction of its obligations under Section 3.02(c) to be held on a non-voting basis for the benefit of the stockholders of Seller existing immediately prior to consummation of the Acquisition Proposal (excluding such Person making the Acquisition Proposal), and, upon the registration and any Affiliate or Representative listing of Stockholder on the other handBuyer Ordinary Shares pursuant to Section 5.06, to be distributed to the stockholders of Seller existing immediately prior to consummation of the Acquisition Proposal.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (Terex Corp), Stock and Asset Purchase Agreement
Acquisition Proposals. (a) Stockholder agrees that neither The Company shall not, nor shall it nor authorize or permit any of its controlled Affiliates (other than the Company Subsidiaries or its Subsidiaries) shall, and shall not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, (ia) initiate, encourage, solicit, assist, induce initiate or facilitate encourage the making, submission or announcement of any Acquisition Inquiry Proposal or (b) participate in or encourage any discussion or negotiations regarding, or furnish to any person any non-public information with respect to, or take any other action to facilitate any inquiries or the making of, any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal; provided, however, that the foregoing shall not prohibit the Board of Directors of the Company from furnishing information to, or entering into discussions or negotiations with, any person or entity that makes an unsolicited Acquisition Proposal prior to the termination of the Initial offer if, and to the extent that, (iiA) furnish or otherwise provide access to any information regarding any Acquired the Board of Directors of the Company, after taking into consideration advice of independent outside legal counsel, determines in good faith that such action is required for the Board of Directors of the Company to comply with its fiduciary obligations to the Company Stockholders under applicable Law, (B) prior to taking such action, the Company receives from such person or entity an executed agreement in reasonably customary form relating to the confidentiality of information to be provided to such person or entity and (C) the Board of Directors of the Company concludes in good faith, based upon written advice from its independent financial advisor, that the Acquisition Proposal is a Superior Proposal. The Company shall provide immediate oral and written notice to Parent of (a) the receipt of any Person in connection with such Acquisition Proposal or in response any inquiry which could reasonably be expected to lead to any Acquisition Inquiry Proposal, (b) the material terms and conditions of such Acquisition Proposal or inquiry, (c) the identity of such person or entity making any such Acquisition Proposal; Proposal or inquiry and (iiid) engage in the Company's intention to furnish information to, or enter into discussions or negotiations with with, such person or entity. The Company shall continue to keep Parent informed of the status and details of any Person such Acquisition Proposal or inquiry. For purposes of this Agreement, "Acquisition Proposal" means any bona fide proposal with respect to a merger, consolidation, share exchange, tender offer or similar transaction involving the Company, or any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement purchase or other similar document acquisition of all or Contract relating to any Acquisition Inquiry significant portion of the assets of the Company or Acquisition Proposalany equity interest in the Company.
(b) Upon the execution hereof, Stockholder shall immediately cease and cause to be terminated all existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other hand.
Appears in 2 contracts
Sources: Merger Agreement (Harland John H Co), Merger Agreement (Cfi Proservices Inc)
Acquisition Proposals. (a) Stockholder agrees that neither it nor any From and after the date hereof, without the prior written consent of its controlled Affiliates (other than the Company or its Subsidiaries) shallChancellor, LIN shall not, and shall not authorize or permit any of its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) subsidiaries to, and shall direct and use its best efforts to cause its and its subsidiaries' Representatives not to, (i) directly or indirectly, solicit, initiate or encourage (including by way of furnishing information or assistance) or take any other action to facilitate any inquiries or the making of any proposal which constitutes or may reasonably be expected to lead to an Acquisition Proposal (as defined below) or (ii) enter into or participate in any discussions or negotiations regarding any Acquisition Proposal. LIN shall immediately cease and terminate any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any persons conducted heretofore by it or its Representatives with respect to the foregoing. LIN agrees not to release any third party from, or waive any provision of, any standstill agreement to which it is a party or any confidentiality agreement between it and another person who has made, or who may reasonably be considered likely to make, an Acquisition Proposal. LIN agrees that it will notify Chancellor orally and in writing, of any such inquiries, offers or proposals (including, without limitation, the terms and conditions of any such proposal).
(b) Neither the Board of Directors of LIN nor any committee thereof shall (i) initiatewithdraw or modify, encourageor propose to withdraw or modify, solicitin a manner adverse to Chancellor, assistthe approval or recommendation by such Board of Directors or committee thereof of this Agreement or the Merger, induce or facilitate the making, submission or announcement of any Acquisition Inquiry or Acquisition Proposal; (ii) furnish approve or otherwise provide access recommend, or propose to any information regarding any Acquired Company to any Person in connection with approve or in response to recommend, any Acquisition Inquiry Proposal or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect cause LIN to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any letter of intent, agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating agreement related to any Acquisition Inquiry or Acquisition Proposal.
(bc) Upon the execution hereofFor purposes of this Agreement, Stockholder shall immediately cease and cause to be terminated all existing activities, discussions an "Acquisition Proposal" means any proposal or negotiations with offer from any parties person (other than Parent and Chancellor or any of its Affiliatessubsidiaries) conducted heretofore with respect for a tender or exchange offer, merger, consolidation, other business combination, recapitalization, liquidation, dissolution or similar transaction involving LIN or any LIN Significant Subsidiary, or any proposal to acquire in any Acquisition Inquiry manner a substantial equity interest in, or an substantial portion of the assets of, LIN or a LIN Significant Subsidiary; provided that an Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply include any direct or indirect acquisition or disposition of television broadcast stations (ior the assets thereof) with respect to any discussions or negotiations with respect to disclosed in the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other handLIN Disclosure Letter.
Appears in 2 contracts
Sources: Merger Agreement (WTNH Broadcasting Inc), Merger Agreement (Chancellor Media Corp of Los Angeles)
Acquisition Proposals. (a) Stockholder agrees that neither it nor any of its controlled Affiliates (other than the Company or its Subsidiaries) shall, and shall not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in In his, her or its capacity as a stockholder shareholder of the Company Xenith, and not in his or her capacity as an officera director, director officer or employee of the CompanyXenith, as applicable, Shareholder agrees that Shareholder will not, and will cause its officers and directors, and will instruct and use reasonable best efforts to cause its representatives and partners (if an entity) not to, directly or indirectly, (i) initiate, encourage, solicit, assist, induce knowingly encourage or knowingly facilitate the making, submission inquiries or announcement of any Acquisition Inquiry or proposals with respect to an Acquisition Proposal; , (ii) furnish engage or participate in any negotiations with any person concerning any Acquisition Proposal, (iii) provide any confidential or nonpublic information or data to, have or participate in any discussions with or otherwise provide access to cooperate in any information regarding way with, any Acquired Company to any Person person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Inquiry or Acquisition Proposal; Proposal or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principleterm sheet, letter of intent, memorandum of understanding, term sheetagreement in principle, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract agreement (other than a confidentiality agreement referred to and entered into in accordance with Section 5.5(b) of the Merger Agreement) relating to any Acquisition Inquiry or Acquisition Proposal.
, in each case, except to the extent that Xenith is permitted to take such action pursuant to the Merger Agreement. Shareholder will and will cause its officers, directors, and will use Shareholder's reasonable best efforts to cause its representatives and partners (bif an entity) Upon the execution hereofto, Stockholder shall immediately cease and cause to be terminated all existing any activities, discussions or negotiations conducted before the date of this Agreement with any parties (person other than Parent and its Affiliates) conducted heretofore Union with respect to any Acquisition Inquiry or Proposal of Xenith. Shareholder will promptly (within twenty-four (24) hours) advise Union following Shareholder's receipt of any Acquisition Proposal or sale of Shares held by Stockholderany inquiry which could reasonably be expected to lead to an Acquisition Proposal, and the substance thereof (including the material terms and conditions of the Acquisition Proposal), and will keep Union apprised of any related material developments, discussions and negotiations on a reasonably current basis, including any amendments to or revisions of the terms of such inquiry or Acquisition Proposal, in each case to the extent Xenith has not previously notified Union. All references herein to an Acquisition Proposal shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) refer to an Acquisition Proposal with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations)Xenith.
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other hand.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization (Union Bankshares Corp), Voting Agreement (CapGen Capital Group VI LP)
Acquisition Proposals. (a) Stockholder After the date hereof and prior to the Effective Time or earlier termination of this Agreement, each of CIMA and aaiPharma agrees that neither it nor any of its controlled Affiliates (other than Subsidiaries nor any of the Company officers, directors or employees of it or its Subsidiaries) Subsidiaries shall, and that it shall use its reasonable best efforts to cause its and its Subsidiaries' other Representatives not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, (i) initiate, solicit, encourage, solicitknowingly facilitate or induce any inquiry with respect to, assist, induce or facilitate the making, submission or announcement of of, any Acquisition Inquiry or Acquisition Proposal; , (ii) participate in any discussions or negotiations regarding, or furnish or otherwise provide access to any information regarding any Acquired Company to any Person in connection any nonpublic information with respect to, or in response take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal (except to notify such Person as to the existence of these provisions or to the extent specifically permitted pursuant to this Section 6.03), (iii) accept, approve, endorse or recommend any Acquisition Proposal (except to the extent specifically permitted pursuant to this Section 6.03), or (iv) enter into any letter of intent or similar document or any agreement, commitment or understanding contemplating or otherwise relating to any Acquisition Inquiry Proposal or Acquisition Proposal; a transaction contemplated thereby (iii) engage in except for confidentiality agreements specifically permitted pursuant to Section 6.03(c)(3)). Each of aaiPharma, CIMA and their officers, directors and employees will immediately cease and cause to be terminated, and shall use its reasonable best efforts to cause its and its Subsidiaries' other Representatives to immediately cease and terminate, any activities, discussions or negotiations conducted before the date of this Agreement with any Person Persons other than CIMA or aaiPharma, as the case may be, with respect to any Acquisition Inquiry Proposal, and will use its reasonable best efforts to enforce any confidentiality or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any similar agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or such Acquisition Proposal.
(b) Upon aaiPharma and CIMA will as promptly as practicable (and in no event later than within one Business Day after receipt thereof) notify the execution hereof, Stockholder shall immediately cease and cause to be terminated all existing activities, discussions or negotiations with other party in writing following receipt of any parties (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry or Acquisition Proposal or sale any request for nonpublic information or inquiry which it reasonably believes could lead to an Acquisition Proposal. Such notice shall set forth in reasonable detail the substance and material terms of Shares held by Stockholdersuch Acquisition Proposal, request or inquiry (including the identity of the Person making such Acquisition Proposal, request or inquiry). aaiPharma and CIMA will keep the other party apprised of any related developments, discussions and negotiations (including any material changes or modifications to the terms and conditions of the Acquisition Proposal, request or inquiry) on a current basis, and shall refrain from engaging provide to the other party, as soon as reasonably practicable, copies of all written materials provided or made available in any future discussions connection with such Acquisition Proposal, request or negotiations between Stockholder and any Person inquiry (other than Parent and its Affiliates) with respect to any sale including the form of any Shares held by Stockholder merger agreement or acquisition agreement, as the case may be, in connection with any such Acquisition Proposal). aaiPharma and CIMA shall provide the other party with forty-eight (other than 48) hours' prior notice (or such lesser prior notice as is provided to state that Stockholder the members of its Board of Directors) of any meeting of its Board of Directors at which such Board of Directors is currently not permitted reasonably expected to engage in such discussions or negotiations)consider any Acquisition Proposal.
(c) Notwithstanding the foregoing, the restrictions anything in this Section 5.2 Agreement to the contrary, each of CIMA and aaiPharma shall not apply (i) be permitted to engage in discussions or negotiations with, and provide nonpublic information to, any Person that has made unsolicited bona fide written Acquisition Proposal with respect to it, if and only to the extent that:
(1) the CIMA Stockholder Approval, in the case of CIMA, or the aaiPharma Stockholder Approval, in the case of aaiPharma, respectively, shall not have been obtained;
(2) (x) its Board of Directors has concluded in good faith, after consultation with a nationally recognized financial advisor and its outside legal counsel, such Acquisition Proposal constitutes a Superior Proposal (and continues to constitute a Superior Proposal after taking into account any amendment or modification to this Agreement proposed by the other party hereto during any three Business Day period referenced below in Section 6.03(d)), or (y) its Board of Directors concludes in good faith, after consultation with a nationally recognized financial advisor and its outside legal counsel, that there is a reasonable likelihood that such Acquisition Proposal would reasonably be expected to result in a Superior Proposal;
(3) prior to providing any nonpublic information to any Person, it shall have entered into a confidentiality agreement with such third party on terms no less favorable to it than the Confidentiality Agreement; and
(4) prior to providing any nonpublic information to any Person or entering into discussions or negotiations with respect any Person, it has notified the other party to this Agreement promptly of such Acquisition Proposal (a "Superior Proposal Notice") and has otherwise complied with its obligations under Section 6.03(b).
(d) For a period of not less than three Business Days after CIMA's or aaiPharma's delivery of any Superior Proposal Notice to the transfer other party, it shall, if requested by the other party, negotiate in good faith with the other party to revise this Agreement so that the Acquisition Proposal that constituted a Superior Proposal no longer constitutes a Superior Proposal (a "Former Superior Proposal"). The terms and conditions of Shares this Section 6.03 shall again apply to any inquiry or proposal made by any Person who withdraws a Superior Proposal or who made a Former Superior Proposal (after withdrawal or after such time as such proposal is a Former Superior Proposal).
(e) Notwithstanding anything in this Agreement to the contrary, each of CIMA and aaiPharma shall be permitted by Section 2.3to effect a Change in CIMA Recommendation or a Change in aaiPharma Recommendation, as the case may be, if and only to the extent that:
(1) the CIMA Stockholder Approval, in the case of CIMA, or the aaiPharma Stockholder Approval, in the case of aaiPharma, respectively, shall not have been obtained;
(ii2) with respect it shall have (x) provided written notice to any discussions between the Stockholder, on other party stating that it intends to change its recommendation and the one handmanner in which it intends to do so, and (y) complied with its obligations under Sections 6.03(b) and (d); and
(3) its Board of Directors has concluded in good faith, after receipt of advice of its outside legal counsel, that the failure of the Board of Directors to effect a Change in CIMA Recommendation or a Change in aaiPharma Recommendation, as applicable, would result in a breach of its fiduciary obligations to its stockholders under applicable Law.
(f) Nothing contained in this Agreement shall prohibit CIMA or aaiPharma or their Board of Directors from taking and disclosing to their stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, provided that the content of any Affiliate such disclosure thereunder shall be governed by the terms of this Agreement. Without limiting the foregoing proviso, neither CIMA nor aaiPharma shall effect a Change in CIMA Recommendation or Representative a Change in aaiPharma Recommendation, respectively, unless specifically permitted pursuant to the terms of Stockholder on Section 6.03(e).
(g) Neither CIMA nor aaiPharma shall submit to the other handvote of its stockholders any Acquisition Proposal, or propose to do so, prior to termination of this Agreement.
(h) Each of CIMA and aaiPharma agrees that it will use reasonable best efforts to promptly inform its Representatives of the obligations undertaken in this Section 6.03.
Appears in 2 contracts
Sources: Merger Agreement (Aaipharma Inc), Merger Agreement (Aaipharma Inc)
Acquisition Proposals. (a) Stockholder agrees that Between the date of this Agreement and the Closing Date, neither it CTC, nor any officer, employee, representative or agent of its controlled Affiliates (other than the Company or its Subsidiaries) shall, and shall not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative any of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) toAcquired Companies shall, directly or indirectly, solicit, initiate, encourage or respond to any inquiries or proposals from, or participate in any discussions or negotiations with, or provide any non-public information to, any Person or group (other than NCO and its officers, employees, representatives and agents) concerning any bulk sale of any of the Assets of the Acquired Companies (other than with respect to the conversion and/or exercise of currently outstanding warrants and/or stock options), any sale of shares of capital stock or other securities of any of the Acquired Companies (other than with respect to the conversion and/or exercise of currently outstanding warrants and/or stock options), or any merger, consolidation or similar transaction involving any of the Acquired Companies (any of the foregoing is referred to herein as an "Acquisition Proposal"). CTC shall immediately advise NCO of, and communicate to NCO the terms of, any such inquiry or proposal received by any of the Acquired Companies. Notwithstanding the foregoing, nothing contained in this Agreement shall prevent CTC or its Board of Directors from (a) seeking exit financing in connection with a "stand-alone" plan of reorganization so long as CTC or its Board of Directors does not proceed with such plan until this Agreement has been terminated in accordance with Section 11.1 hereof (b) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal, (c) engaging in any discussions or negotiations with or providing any information to any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person, or (d) recommending such an unsolicited bona fide written Acquisition Proposal under Bankruptcy Law if, and only to the extent that, with respect to the actions referred to in clauses (c) or (d): (i) initiateits Board of Directors concludes in good faith (after consultation with its outside legal counsel and its financial advisor) that taking such Acquisition Proposal is reasonably capable of being completed, encouragetaking into account all legal, solicitfinancial, assist, induce or facilitate regulatory and other aspects of the making, submission or announcement of any Acquisition Inquiry or Proposal and the Person making the Acquisition Proposal, and would if consummated result in a transaction more favorable to its shareholders from a financial point of view than the Transactions (any such Acquisition Proposal being referred to herein as a "Superior Proposal"); (ii) furnish or otherwise provide access its Board of Directors determines in good faith after consultation with outside legal counsel that such action is necessary for the Board of Directors to comply with its fiduciary duty to its shareholders under applicable Law; and (iii) prior to providing any information regarding any Acquired Company or date to any Person in connection with or a Superior Proposal by such Person, its Board of Directors shall have received from such Person an executed confidentiality agreement on terms substantially similar to those contained in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition Proposalthe Confidentiality Agreement.
(b) Upon the execution hereof, Stockholder shall immediately cease and cause to be terminated all existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other hand.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Creditrust Corp), Agreement and Plan of Merger (Nco Group Inc)
Acquisition Proposals. (a) Stockholder agrees that neither it Neither HiSoft nor VanceInfo will, nor will such Party permit any of its controlled Affiliates (other than the Company or its Subsidiaries) shallSubsidiaries to, and shall not nor will such Party authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an any officer, director or employee or any investment banker, attorney, accountant or other advisor or representative (each, a “Representative”) of the Company) such Party or any of its Subsidiaries to, directly or indirectly, (i) solicit, initiate, encourage, solicit, assist, induce encourage or knowingly facilitate any inquiry or the making, submission or announcement making of any proposal or offer or any other effort or attempt (including by way of furnishing information) or take any other action designed to facilitate any inquiries or proposals regarding, or which may reasonably be expected to lead to, any Acquisition Inquiry or Acquisition Proposal; Proposal (as defined below), (ii) furnish engage in, continue or otherwise provide access participate in any discussions or negotiations regarding, or furnish to any person any non-public information regarding with respect to such Party or any Acquired Company to any Person of its Subsidiaries in connection with with, or in response take any other action to facilitate, any Acquisition Inquiry or Acquisition Proposal; , (iii) engage in discussions approve or negotiations with any Person with respect recommend, or propose to any Acquisition Inquiry approve or Acquisition Proposal; recommend, or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal execute or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheetagreement or agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document agreement regarding, or Contract relating that is intended to result in, or would reasonably be expected to lead to, any Acquisition Inquiry Proposal, or Acquisition Proposal.
(biv) Upon propose or agree to do any of the foregoing. Immediately after the execution hereofand delivery of this Agreement, Stockholder shall immediately each of HiSoft and VanceInfo will, and will cause its Subsidiaries and Affiliates and their respective Representatives to, cease and cause to be terminated all terminate any existing activities, discussions or negotiations with any parties Person (other than Parent and its Affiliatesanother Party to this Agreement) conducted heretofore with respect to any possible Acquisition Inquiry Proposal, shall promptly cause to be returned or destroyed all confidential information provided by or on behalf of such Party or any of its Subsidiaries to such Person and shall notify each such Person or its Representatives that the Board of Directors of such Party no longer seeks or requests the making of any Acquisition Proposal or sale of Shares held by StockholderProposal, and shall refrain from engaging in withdraws any future discussions consent theretofore given to the making of an Acquisition Proposal. For the purpose of this Agreement, “Acquisition Proposal” means any proposal or negotiations between Stockholder and offer made by any Person (other than Parent and its Affiliatesanother Party to this Agreement) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply regarding (i) with respect to any discussions merger, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or negotiations with respect to similar transaction involving such Party or any of its Subsidiaries, (ii) any acquisition or sale of 10% or more of the transfer consolidated assets (including, without limitation, stock of Shares permitted by Section 2.3its Subsidiaries) or businesses of such Party and its Subsidiaries, taken as a whole, or (iiiii) with respect to any discussions between acquisition or sale of, or tender or exchange offer for, its voting securities (or beneficial ownership (as defined in Section 13(d) of the StockholderExchange Act) thereof) that, on if consummated, would result in any Person (or the one hand, shareholders of such Person) beneficially owning securities representing 10% or more of its total voting power (or of the surviving parent entity in such transaction) of any of such Party and any Affiliate or Representative of Stockholder on the other handits Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (HiSoft Technology International LTD), Merger Agreement (VanceInfo Technologies Inc.)
Acquisition Proposals. (a) Stockholder agrees that neither it Except with respect to this Agreement and the transactions contemplated hereby, no CFSB Company nor any director, employee, investment banker, attorney, accountant or other representative thereof (collectively, "Representatives") retained by any CFSB Company shall directly or indirectly solicit any Acquisition Proposal by any Person. Except to the extent necessary to comply with the fiduciary duties of its controlled Affiliates Board of Directors as advised by counsel, no CFSB Company nor Representative thereof shall furnish any non-public information in connection with, negotiate with respect to, or enter into any Contract with respect to, any Acquisition Proposal, but CFSB may communicate information about such an Acquisition Proposal to its shareholders if and to the extent that it is required to do so in order to comply with its legal obligations as advised by counsel. CFSB shall promptly notify CBC orally and in writing in the event that it receives any inquiry or proposal relating to any such transaction.
(other than the Company or its Subsidiariesb) shallExcept as set forth herein, and CFSB shall not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, (i) initiatewithdraw or modify, encourageor propose to withdraw or modify, solicitin a manner adverse to CBC, assistthe approval or recommendation of its Board of Directors of this Agreement or the Merger, induce or facilitate the making, submission or announcement of any Acquisition Inquiry or Acquisition Proposal; (ii) furnish approve or otherwise provide access recommend, or propose to any information regarding any Acquired Company to any Person in connection with approve or in response to recommend, any Acquisition Inquiry Proposal or Acquisition Proposal; (iii) engage in discussions or negotiations with enter into any Person agreement with respect to any Acquisition Inquiry Proposal. Notwithstanding the foregoing, if in the opinion of the Board of Directors of CFSB, after consultation with counsel, failure to do so would be inconsistent with its fiduciary duties to its shareholders under applicable law, then the Board of Directors of CFSB may (subject to the terms of this section (b)) withdraw or modify its approval or recommendation of this Agreement or the Merger, approve or recommend an Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal , or enter into any an agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition Proposal.
(b) Upon the execution hereof, Stockholder shall immediately cease and cause to be terminated all existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect to an Acquisition Proposal, in each case at any time after the second business day following the receipt of written notice (a "Notice of Acquisition Inquiry or Proposal") by CBC advising it that CFSB has received an Acquisition Proposal or sale Proposal, specifying the material terms and conditions of Shares held by Stockholder, such proposal and identifying the Person making such proposal; provided that CFSB shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) not enter into an agreement with respect to any sale an Acquisition Proposal unless it shall have furnished CBC with written notice no later than 12:00 noon Georgia time one (1) day in advance of any Shares held by Stockholder (other than date that it intends to state that Stockholder is currently not permitted to engage in enter into such discussions or negotiations)agreement.
(c) Notwithstanding In addition to the foregoingobligations set forth in section (b) above, CFSB shall immediately advise CBC orally and in writing of any request for information or of any Acquisition Proposal, or any inquiry with respect to or which could lead to an Acquisition Proposal, the restrictions material terms and conditions of such request, Acquisition Proposal or inquiry, and the identity of the Person making a request, Acquisition Proposal or inquiry. CFSB shall keep CBC fully informed of the status and details (including amendments or proposed amendments) of the material terms of any such request, Acquisition Proposal or inquiry.
(d) Nothing contained in this Section 5.2 8.6 shall not apply prohibit CFSB from making any disclosure to its shareholders if, in the opinion of its Board of Directors, after consultation with counsel, failure to so disclose would be inconsistent with federal securities laws or its fiduciary duties to its shareholders under applicable law; provided that CFSB does not, except as permitted by section (ib) with respect above, withdraw or modify, or propose to any discussions withdraw or negotiations modify, its position with respect to the transfer of Shares permitted by Section 2.3Merger or approve or recommend, or (ii) with respect propose to any discussions between the Stockholderapprove or recommend, on the one hand, and any Affiliate or Representative of Stockholder on the other handan Acquisition Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Citizens Bancshares Corp /Ga/), Merger Agreement (CFS Bancshares Inc)
Acquisition Proposals. (a) Stockholder agrees that neither it nor any of its controlled Affiliates (other than Subject to Section 6.4(b) and Section 6.4(d), the Company or its Subsidiaries) shallwill not, and shall will cause its Subsidiaries and Representatives not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, from the date hereof until the earlier of the Closing and the termination of this Agreement: (i) initiate, encourage, solicit, assist, induce solicit or knowingly encourage or knowingly facilitate the making, submission or announcement of any Acquisition Inquiry Proposal or Acquisition Proposal; engage in any negotiations with respect thereto, (ii) furnish except for a confidentiality agreement contemplated pursuant to Section 6.4(b), enter into any merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement or otherwise provide access share exchange agreement, option agreement or other similar agreement relating to any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or an Acquisition Proposal; , or (iii) engage withdraw, modify or qualify, or propose publicly to withdraw, modify or qualify, in discussions a manner adverse to Parent or negotiations Merger Sub, the Company Board Recommendation (a “Change of Board Recommendation”); provided, that a customary “stop, look and listen” communication by the Company Board pursuant to Rule 14d-9(f) of the Exchange Act shall not be prohibited or deemed to be a Change of Board Recommendation. The Company will immediately cease any solicitation, discussion or negotiation with any Person by the Company, the Retained Subsidiaries or any of their Representatives with respect to any Acquisition Inquiry Proposal and, to the extent the Company is contractually permitted to do so, will request the return or Acquisition Proposal; destruction of all confidential information provided by or (iv) otherwise facilitate any effort on behalf of the Company or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating the Retained Subsidiaries to any Acquisition Inquiry or Acquisition Proposalsuch Person.
(b) Upon Notwithstanding anything to the execution hereofcontrary contained in Section 6.4(a), Stockholder shall immediately cease if at any time following the date of this Agreement and cause prior to the earlier of the Closing and the termination of this Agreement, (i) the Company has received a written Acquisition Proposal that the Company Board believes is bona fide, and (ii) the Company Board determines that such Acquisition Proposal constitutes or is reasonably likely to lead to or result in a Superior Proposal or that the failure to take such action would reasonably be expected to be terminated all existing activitiesinconsistent with the directors’ fiduciary duties under applicable Legal Requirements, then the Company may, at any time prior to obtaining the Requisite Stockholder Approval (but in no event after obtaining the Requisite Stockholder Approval), and subject to clauses (1) and (2) below, (A) furnish information with respect to the Company and the Retained Subsidiaries to the Person making such Acquisition Proposal and its Representatives and (B) engage or participate in discussions or negotiations with regarding such Acquisition Proposal; provided, that (1) the Company will, as promptly as reasonably practicable, provide to Parent any parties (material non-public information concerning the Company or the Retained Subsidiaries provided or made available to such other than Person that was not previously provided or made available to Parent and its Affiliates(2) conducted heretofore with respect to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholderthe Company will not, and shall refrain will cause its Subsidiaries and Representatives not to, disclose any material non-public information to such Person unless the Company has, or first enters into, a confidentiality agreement with such Person with substantially similar confidentiality provisions, in the aggregate, as those in the Confidentiality Agreement; provided, however, that such confidentiality agreement may not include any provision calling for an exclusive right to negotiate with the Company and may not restrict the Company from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) complying with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations)this Section 6.4.
(c) The Company will promptly (and in any event within twenty-four (24) hours) notify Parent in the event that the Company receives any Acquisition Proposal or written indication by any Person that it is considering making an Acquisition Proposal, and shall, in any such notice to Parent, indicate the identity of the Person making such Acquisition Proposal or indication and the terms and conditions of any such Acquisition Proposal or indication. The Company will provide Parent promptly (and in any event within such twenty-four (24) hour period) a copy of any such Acquisition Proposal or indication and copies of any other written materials received from or on behalf of such Person relating to such Acquisition Proposal or indication. The Company will keep Parent reasonably informed of any material changes in any Acquisition Proposal or indication, including furnishing copies of any written correspondence and draft documentation.
(d) Notwithstanding anything in Section 6.4(a) to the foregoingcontrary, but subject to the provisions of Section 6.3(e), if (i) the Company receives a written Acquisition Proposal that the Company Board believes is bona fide, and (ii) the Company Board concludes such Acquisition Proposal constitutes a Superior Proposal, the restrictions Company Board may at any time prior to obtaining the Requisite Stockholder Approval, if it determines in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Legal Requirements, (A) effect a Change of Board Recommendation and/or (B) terminate this Agreement; provided, however, that the Company may not enter into a definitive agreement providing for the implementation of a transaction that is a Superior Proposal unless this Agreement shall have been terminated by the Company in accordance with Section 5.2 8.3(b).
(e) The Company shall not apply (ibe entitled to effect a Change of Board Recommendation or terminate this Agreement pursuant to Section 6.4(d) with respect to any discussions or negotiations a Superior Proposal unless (i) the Company has complied in all material respects with this Section 6.4, (ii) the Company has provided prior written notice to Parent at least four (4) Business Days in advance of its intention to take such action with respect to such Superior Proposal, which notice specifies the transfer terms and conditions of Shares permitted by Section 2.3such Superior Proposal and includes a copy of the relevant proposed transaction agreements with the party making such Superior Proposal and other material documents, or (iiiii) with respect to any discussions between during such four (4) Business Day period, the Stockholder, on the one handCompany shall, and shall cause its Representatives to, negotiate with Parent and Merger Sub in good faith (to the extent Parent and Merger Sub desire to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal, and (iv) following the end of such four (4) Business Day period, the Company Board shall have determined in good faith, taking into account any Affiliate changes to the terms of this Agreement proposed by Parent to the Company in response to such Superior Proposal or Representative otherwise, that the Superior Proposal continues to constitute a Superior Proposal. Any amendment to the financial terms or any other material amendment of Stockholder on such Superior Proposal shall require the other handCompany to comply again with the requirements of this Section 6.4(e).
Appears in 2 contracts
Sources: Merger Agreement (Symmetry Surgical Inc.), Agreement and Plan of Merger (Symmetry Medical Inc.)
Acquisition Proposals. (a) Stockholder agrees that neither FCB shall not, nor shall it nor permit any of its controlled Affiliates (other than the Company Subsidiaries to, nor shall it or its Subsidiaries) shall, and shall not Subsidiaries authorize or permit its Representatives (it being understood thatany of their respective officers, for purposes hereofdirectors, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged employees, representatives or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) agents to, directly or indirectly, (i) initiate, encourage, solicit, assistinitiate or knowingly encourage (including by way of furnishing non-public information) any inquiries regarding, induce or facilitate the making, submission or announcement making of any Acquisition Inquiry or proposal which constitutes, any Acquisition Proposal, (ii) enter into any letter of intent or agreement related to any Acquisition Proposal other than a confidentiality agreement (each, an “Acquisition Agreement”) or (iii) participate in any discussions or negotiations regarding, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes, or that would reasonably be expected to lead to, any Acquisition Proposal; provided, however, that if, at any time prior to the FCB Stockholders’ Meeting, and without any breach of the terms of this Section 7.6(a), FCB receives an Acquisition Proposal from any Person that in the good faith judgment of the FCB Board is, or is reasonably likely to lead to the delivery of, a Superior Proposal, FCB may (x) furnish information (including non-public information) with respect to FCB to any such Person pursuant to a confidentiality agreement containing confidentiality provisions no more favorable to such Person than those in the Confidentiality Agreement between ANB and FCB, and (y) participate in negotiations with such Person regarding such Acquisition Proposal, if the FCB Board determines in good faith, after consultation with counsel, that failure to do so would likely result in a violation of its fiduciary duties under applicable Law.
(b) Except as set forth in Section 10.1(k), neither the FCB Board nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to ANB, the approval or recommendation by the FCB Board or such committee of the Merger or this Agreement; (ii) furnish approve or otherwise provide access recommend, or propose to approve or recommend, any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Inquiry or Acquisition Proposal; or (iviii) otherwise facilitate authorize or permit FCB or any effort or attempt of its Subsidiaries to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition ProposalAgreement.
(bc) Upon the execution hereofFCB agrees that it and its Subsidiaries shall, Stockholder and FCB shall direct its and its Subsidiaries’ respective officers, directors, employees, representatives and agents to, immediately cease and cause to be terminated all existing any activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore Persons with respect to any Acquisition Inquiry Proposal. FCB agrees that it will notify ANB promptly (but no later than 24 hours) if, to FCB’s Knowledge, any Acquisition Proposal is received by, any information is requested from, or any discussions or negotiations relating to an Acquisition Proposal are sought to be initiated or continued with, FCB, its Subsidiaries, or their officers, directors, employees, representatives or agents. The notice shall indicate the name of the Person making such Acquisition Proposal or sale taking such action and the material terms and conditions of Shares held by Stockholderany proposals or offers, and thereafter FCB shall refrain from engaging in any future discussions or negotiations between Stockholder keep ANB informed, on a current basis, of the status and any Person (other than Parent and its Affiliates) with respect to any sale terms of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such proposals or offers and the status of any such discussions or negotiations). FCB also agrees that it will promptly request each Person that has heretofore executed a confidentiality agreement in connection with any Acquisition Proposal to return or destroy all confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries.
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other hand.
Appears in 2 contracts
Sources: Merger Agreement (Alabama National Bancorporation), Merger Agreement (Florida Choice Bankshares, Inc.)
Acquisition Proposals. (a) Stockholder agrees that neither it nor any of its controlled Affiliates (other than the The Company or its Subsidiaries) shall, and shall not cause the Company Subsidiaries and the Company’s and the Company Subsidiaries’ respective Representatives to, immediately cease and terminate any discussions or negotiations with any Person conducted heretofore with respect to any Acquisition Proposal, and use commercially reasonable efforts to obtain the return from all such Persons or cause the destruction of all copies of confidential information previously provided to such parties by the Company, the Company Subsidiaries or their respective Representatives. The Company shall not, nor shall it authorize or knowingly permit any Company Subsidiary or any of its or their respective Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, except as expressly provided in this Section 6.4, (i) solicit, initiate, encourageinduce, solicit, assist, induce encourage or knowingly facilitate (including by way of furnishing information) the making, submission or announcement making of any Acquisition Inquiry Proposal or any inquiry, proposal, request for information or offer that would reasonably be expected to lead to an Acquisition Proposal; Proposal (an “Acquisition Inquiry”), (ii) furnish other than with Gannett, Merger Sub or their respective Representatives, enter into, continue, have or otherwise provide access to participate in any information regarding any Acquired Company discussions or negotiations regarding, or furnish to any Person any non-public information in connection with or in response to with, any Acquisition Inquiry Proposal or any Acquisition Proposal; Inquiry, (iii) engage in discussions approve, accept, endorse or negotiations with any Person with respect to recommend any Acquisition Inquiry Proposal or Acquisition Proposal; or (iv) otherwise knowingly facilitate any effort or attempt to make or implement an Acquisition Inquiry Proposal or Acquisition Inquiry, or (iv) enter into any Contract with respect to any of the actions described in clauses (i) through (iii) of this Section 6.4(a).
(b) Notwithstanding the foregoing or any other provision of this Agreement or any Related Agreement to the contrary, if at any time after the date hereof and prior to the receipt of the Stockholder Approval, (i) the Company or any Company Subsidiary receives a bona fide, written Acquisition Proposal (other than as a result of a breach of this Section 6.4) and (ii) the Company Board has in good faith determined, (A) after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal is, or is reasonably likely to lead to, a Superior Proposal and such Acquisition Proposal has not been withdrawn, and (B) after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties to the Company’s stockholders under applicable Law, then the Company may (x) furnish information with respect to the Company and the Company Subsidiaries to the Person making such Acquisition Proposal (and its Representatives) pursuant to an executed confidentiality agreement with such Person with confidentiality provisions no less favorable in the aggregate to the Company than those contained in the Nondisclosure Agreement then in effect, provided, that a copy of all such information not previously provided to Gannett (or its Representatives) shall be provided to Gannett prior to or contemporaneously with providing such Person with such information, and (y) engage in discussions and negotiations with respect to such Acquisition Proposal with the Person making such Acquisition Proposal and its Representatives.
(c) The Company shall provide Gannett orally and in writing as promptly as reasonably practicable (and no later than twenty-four (24) hours after receipt and at least twenty-four (24) hours prior to furnishing information permitted under Section 6.4(b) to any Person making an Acquisition Proposal) of any Acquisition Proposal or Acquisition Inquiry, the material terms and conditions of any such Acquisition Proposal (including any changes thereto) or Acquisition Inquiry and the identity of the Person making any such Acquisition Proposal or Acquisition Inquiry and, if in writing, shall provide Gannett with a copy of such Acquisition Proposal or Acquisition Inquiry. The Company shall keep Gannett reasonably informed of the status (including any changes to the material terms and conditions thereof) of any such Acquisition Proposal or Acquisition Inquiry. The Company agrees that neither it nor any Company Subsidiary will enter into any confidentiality agreement with any Person subsequent to the date of this Agreement that prohibits the Company from providing such information to Gannett.
(d) The Company Board shall not, directly or indirectly, (i) (A) withdraw (or amend or modify in principlea manner adverse to Gannett) or publicly propose to withdraw (or amend or modify in a manner adverse to Gannett), the approval, adoption, recommendation or declaration of advisability of this Agreement or the Merger and the other transactions contemplated by this Agreement or (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Acquisition Proposal (any action described in this clause (i) being referred to as an “Adverse Recommendation Change”) (it being understood that any such disclosure other than a “stop, look and listen” communication or similar communication of the type contemplated by Rule 14d-9(f) promulgated under the Exchange Act, shall constitute an Adverse Recommendation Change unless the Company Board expressly publicly reaffirms the recommendation of the Merger by the Company Board in such disclosure) or (ii) approve, adopt or recommend, or publicly propose to approve, adopt or recommend, or allow the Company or any Company Subsidiary to execute or enter into, any letter of intent, memorandum of understanding, term sheetagreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document Contract (other than a confidentiality agreement referred to in Section 6.4(b)) (A) constituting or Contract relating that could reasonably be expected to lead to any Acquisition Inquiry Proposal or (B) requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement; provided, that, in the case of this clause (ii), the Company shall not be prohibited from entering into any such Contract or document if, subject to compliance with the other provisions of this Section 6.4, it concurrently terminates this Agreement pursuant to Section 8.1(d)(ii) and pays Gannett the Termination Fee. Notwithstanding anything to the contrary contained herein, but subject to the Company’s compliance with the other provisions of this Section 6.4, at any time prior to obtaining the Stockholder Approval, the Company Board may make an Adverse Recommendation Change related to an Acquisition Proposal or take an action described in clause (ii) of this Section 6.4 if (A) the Company Board has in good faith determined that, (x) after consultation with its outside legal counsel and financial advisors, that such Acquisition Proposal is and continues to be a Superior Proposal and such Acquisition Proposal has not been withdrawn, and (y) after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties to the Company’s stockholders under applicable Law, (B) the Company Board shall have first provided prior written notice to Gannett that it is prepared to make an Adverse Recommendation Change or accept a Superior Proposal (a “Superior Proposal Notice”), which Superior Proposal Notice shall contain a description of the material terms and conditions of such Superior Proposal and the identity of the Person making such Superior Proposal (it being understood and agreed that the delivery of such notice shall not, in and of itself, be deemed to be an Adverse Recommendation Change) and, if in writing, include a copy of such Proposal, and (C) Gannett does not make, within five (5) Business Days after receipt of the Superior Proposal Notice, a written proposal setting forth revised terms and conditions of this Agreement that would, in the good faith judgment of the Company Board, after consultation with its outside legal counsel and its financial advisors, cause the offer previously constituting a Superior Proposal no longer to constitute a Superior Proposal (a “Superior Proposal Counternotice”). If Gannett has in good faith delivered a Superior Proposal Counternotice to the Company during the five (5) Business Day period after receipt of the Superior Proposal Notice, then the Company shall negotiate in good faith with Gannett for the three (3) Business Day period following the Company’s receipt of the Superior Proposal Counternotice regarding any such revisions to the terms and conditions of this Agreement set forth in such Superior Proposal Counternotice. Any material changes to the financial terms or any material change to other material terms of such Superior Proposal occurring prior to the making of an Adverse Recommendation Change pursuant to this Section 6.4(d) by the Company Board or the Company terminating this Agreement pursuant to Section 8.1(d) shall require the Company to deliver to Gannett a new Superior Proposal Notice, give Gannett a new five (5) Business Day period following receipt of such Superior Proposal Notice for Gannett to deliver a Superior Proposal Counternotice, and give the parties a new three (3) Business Day negotiating window if Gannett delivers the Company a Superior Proposal Counternotice during such period.
(be) Upon The Company agrees not to release any Person from, or to amend or waive any provision of, any confidentiality, standstill or similar Contract to which the execution hereof, Stockholder shall immediately cease and cause to be terminated all existing activities, discussions Company is or negotiations becomes a party in connection with any parties (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry or an Acquisition Proposal or sale of Shares held by StockholderAcquisition Inquiry, unless the Company Board has in good faith determined, (i) after consultation with its outside counsel and financial advisors, that the offer or proposal to which such Contract relates is, or is reasonably likely to lead to, a Superior Proposal, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and ii) after consultation with its Affiliates) outside legal counsel, that the failure to take such action would be inconsistent with respect its fiduciary duties to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations)the Company’s stockholders under applicable Law.
(cf) Notwithstanding The Company shall ensure that its Representatives and the foregoing, Representatives of the restrictions in Company Subsidiaries are aware of the provisions of this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand6.4, and the Company acknowledges and agrees that any Affiliate action taken by or Representative at the direction of Stockholder on any Company director or officer that, if taken by the other handCompany, would constitute a breach of this Section 6.4, will be deemed to constitute a breach of this Section 6.4 by the Company.
Appears in 2 contracts
Sources: Merger Agreement (Gannett Co Inc /De/), Merger Agreement (Belo Corp)
Acquisition Proposals. (a) Stockholder agrees that neither it nor any From the date hereof until the Closing Date or, if earlier, the termination of its controlled Affiliates (other than this Agreement in accordance with Article X, the Company or its Subsidiaries) shallMurano Parties shall not, and the Murano Parties shall instruct and use reasonable best efforts to cause their representatives acting on their behalf not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, to (i) initiate, encourage, solicit, assist, induce or facilitate the making, submission or announcement of initiate any Acquisition Inquiry or Acquisition Proposal; (ii) furnish or otherwise provide access to any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to, or provide any non-public information or data concerning the Group Companies to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement Person relating to, an Acquisition Inquiry or Acquisition Proposal or afford to any Person access to the business, properties, assets or personnel of the Group Companies in connection with an Acquisition Proposal, (ii) enter into any acquisition agreement, merger agreement in principleor similar definitive agreement, or any letter of intent, memorandum of understandingunderstanding or agreement in principle, term sheetor any other agreement relating to an Acquisition Proposal, acquisition agreement(iii) grant any waiver, option agreement, joint venture agreement, partnership agreement, merger amendment or release under any confidentiality agreement or other similar document or Contract relating to the anti-takeover laws of any Acquisition Inquiry or state, in each case, in connection with an Acquisition Proposal.
, or (biv) Upon otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make an Acquisition Proposal. From and after the execution date hereof, Stockholder the Murano Parties shall, and the Murano Parties shall instruct and use reasonable best efforts to cause their representatives acting on their behalf to, immediately cease and cause to be terminated terminate all existing activities, discussions or and negotiations with any parties Persons that may be ongoing with respect to an Acquisition Proposal (other than Parent HCM and its Affiliates) conducted heretofore representatives). Notwithstanding anything to the contrary in this Agreement, the Murano Parties and their respective representatives shall not be restricted pursuant to the foregoing sentences with respect to any Acquisition Inquiry actions explicitly contemplated by this Agreement or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations)the Ancillary Agreements.
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other hand.
Appears in 2 contracts
Sources: Business Combination Agreement (HCM Acquisition Corp), Business Combination Agreement (HCM Acquisition Corp)
Acquisition Proposals. (a) From and after the date hereof until the Termination Date, except as expressly contemplated pursuant to this Agreement, each Stockholder agrees that neither it nor any of its controlled Affiliates (other than the Company or its Subsidiaries) shallshall not, and shall cause its directors and officers not authorize or permit to, and will instruct and use reasonable best efforts to cause each of its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, (i) solicit, initiate, encourage, solicit, assist, propose or knowingly induce or facilitate the making, submission or announcement of of, or knowingly encourage, facilitate or assist, any Acquisition Inquiry proposal or offer that constitutes or could reasonably be expected to lead to, an Acquisition Proposal; (ii) furnish or otherwise provide access to any information regarding any Acquired Company to any Person in connection with (other than Parent, Merger Sub or in response any designees of Parent or Merger Sub) any non-public information relating to the Company or any of its Subsidiaries or afford to any Acquisition Inquiry Person access to the business, properties, assets, books, records or personnel, of the Company or any of its Subsidiaries, in any such case with the intent to reasonably be expected to induce the making, submission or announcement of, or to knowingly encourage or knowingly facilitate, an Acquisition Proposal; (iii) participate or engage in discussions or negotiations with any Person with respect to any an Acquisition Inquiry Proposal, in each case, other than informing such Persons of the existence of the provisions contained in this Section 4.1 and contacting the Person making the Acquisition Proposal solely in order to clarify the terms or conditions of the Acquisition Proposal in connection with determining whether the Acquisition Proposal constitutes a Superior Proposal; (iv) approve, endorse or recommend an Acquisition Proposal; or (ivv) enter into any Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, each Stockholder may, directly or indirectly through one or more of its Representatives participate or engage in discussions or negotiations with, furnish any non-public information relating to the Company or any of its Subsidiaries to, or afford access to the business, properties, assets, books, records or personnel, of the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement to any Person or such Person’s Representatives that has made, renewed or delivered to the Company an Acquisition Proposal after the date of this Agreement, contact such Person to clarify the terms or conditions thereof and otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or such Acquisition Proposal or enter into any agreement assist such Person (and such Person’s Representatives and financing sources) with such Acquisition Proposal if requested by such Person, in principleeach case, letter with respect to an Acquisition Proposal that the Company Board (acting under the direction of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement the Special Committee) has determined in good faith (after consultation with its financial advisors and outside legal counsel) either constitutes a Superior Proposal or other similar document or Contract relating is reasonably expected to any Acquisition Inquiry or Acquisition lead to a Superior Proposal.
(b) Upon From and after the execution hereofdate hereof until the Termination Date, each Stockholder (solely in its capacity as a Company Stockholder) shall immediately cease and cause to be terminated all existing activitiesas promptly as reasonably practicable (and, discussions or negotiations with in any parties event, within forty-eight (other than 48) hours) notify Parent and its Affiliates) conducted heretofore with respect to if any Acquisition Inquiry Proposal is received by such Stockholder or any of its Representatives, but only to the extent the Company has not already provided such notice to Parent. Such notice must include (i) the identity of the Person or Group making such Acquisition Proposal; and (ii) a summary of the material terms and conditions of any such Acquisition Proposal. Thereafter, each Stockholder must keep Parent reasonably informed, on a prompt basis, of the status and material terms of any such Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale the status of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such related material discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other hand.
Appears in 2 contracts
Sources: Support and Rollover Agreement (Powerschool Holdings, Inc.), Support and Rollover Agreement (Powerschool Holdings, Inc.)
Acquisition Proposals. 5.1 Until the Expiration Time, (a) each Stockholder agrees that neither it nor any of its controlled Affiliates (other than solely in the Company or its Subsidiaries) shall, and shall not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) shall not, and shall direct its Affiliates and their respective Representatives not to, directly or indirectly, (i) initiate, encourage, solicit, assist, induce initiate or knowingly take any action to facilitate or encourage the making, submission or announcement of any Acquisition Inquiry or Acquisition Proposal; , (ii) enter into or participate in any discussions or negotiations with, furnish or otherwise provide access to any information regarding relating to the Company or any Acquired Company of its Subsidiaries to, otherwise cooperate in any way with, or assist, participate in, knowingly facilitate or knowingly encourage any effort by, any Third Party that is seeking to any Person in connection with make, or in response to any Acquisition Inquiry or has made, an Acquisition Proposal; , (iii) engage in discussions encourage or negotiations with recommend any Person with respect other holder of Company Stock to not adopt the Merger Agreement or approve the transactions contemplated by the Merger Agreement, including the Merger, or make any Acquisition Inquiry public statement approving or recommending an Acquisition Proposal; or , (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, merger agreement, purchase agreement, acquisition agreement, option agreement, joint venture voting agreement, partnership agreement, merger support agreement or other similar document or Contract relating to agreement in connection with any Acquisition Inquiry Proposal or Acquisition Proposal.
(v) agree to do any of the foregoing and (b) Upon each Stockholder (solely in the execution hereofcapacity as a stockholder of the Company) shall, Stockholder and shall direct its Affiliates and their respective Representatives to, cease immediately cease and cause to be terminated any and all existing activities, discussions or negotiations negotiations, if any, with any parties (other than Parent Third Party and its Affiliates) Representatives conducted heretofore prior to the date hereof with respect to any Acquisition Inquiry Proposal.
5.2 Until the Expiration Time, each Stockholder (solely in the capacity as a stockholder of the Company) agrees to notify Buyer promptly (and in any event within twelve (12) hours) after receipt of any Acquisition Proposal, any inquiry, proposal or offer which constitutes, or could reasonably be expected to lead to an Acquisition Proposal or sale any inquiry or request for nonpublic information relating to the Company and its Subsidiaries by any Person who has made or would reasonably be expected to make an Acquisition Proposal. Such notice shall (A) indicate the identity of Shares held by Stockholderthe Person who has made or could reasonably be expected to make an Acquisition Proposal and (B) include a copy of any relevant written documents or agreements delivered to such Stockholder or its Representatives in connection with such inquiry, proposal or offer (or, if not delivered in writing, a summary of the material terms and conditions of any such proposal or offer or the nature of the information requested pursuant to such inquiry or request). Thereafter, such Stockholder shall keep Buyer reasonably informed, on a prompt basis (and in any event within one (1) Business Day), regarding any material changes to the status and material terms of any such inquiry, proposal or offer (and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) provide Buyer with respect to any sale a copy of any Shares held by Stockholder relevant written documents or agreements delivered to the Company or its Representatives that contain any material amendments thereto or any material change to the scope or material terms or conditions thereof (other than to state that Stockholder is currently or, if not permitted to engage delivered in writing, a summary of any such discussions material amendments or negotiationsmaterial changes)).
(c) 5.3 Notwithstanding the foregoing, if the restrictions in this Company is permitted, pursuant to Section 5.2 shall not apply (i) with respect 6.03 of the Merger Agreement, to any have discussions or negotiations with respect to an Acquisition Proposal, each Stockholder and its Representatives shall be permitted to participate in such discussions or negotiations with the transfer Person or group making such Acquisition Proposal to the same extent as the Company is permitted to do so under Section 6.03 of Shares permitted the Merger Agreement, subject to compliance by such Stockholder with Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other hand5.2 above.
Appears in 2 contracts
Sources: Voting and Support Agreement (BTRS Holdings Inc.), Voting and Support Agreement (BTRS Holdings Inc.)
Acquisition Proposals. (a) Stockholder agrees that neither it nor any of its controlled Affiliates The Company shall not (other than the Company or its Subsidiaries) shall, and shall not authorize resolve or permit its propose to) and shall ensure that the other Acquired Companies and all Representatives (it being understood thatincluding any investment banker, for purposes hereof, a Representative attorney or accountant retained by any Acquired Company) of the Company shall Acquired Companies do not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged (and do not resolve or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) propose to), directly or indirectly, (i) initiate, encourage, solicit, assist, induce or facilitate the making, submission or announcement of any Acquisition Inquiry or Acquisition Proposal; (ii) furnish or otherwise provide access to any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition ProposalProposal (each, a “Company Acquisition Agreement”).
(b) Upon Notwithstanding anything to the contrary contained in Section 7.2(a), prior to the adoption of this Agreement by the Company Requisite Vote, the Company may furnish non-public information regarding the Acquired Companies to, and may enter into discussions or negotiations with, a Person in response to an unsolicited, bona fide, written Acquisition Proposal that is submitted to the Company by such Person (and not withdrawn) if: (i) neither any Acquired Company nor any Representative of any Acquired Company shall have breached or taken any action inconsistent with any of the provisions set forth in this Section 7.2 or Section 7.4 or failed to enforce any “standstill” or similar agreement or provision under which any Acquired Company has any rights or any Support Agreement; (ii) the Company Board reasonably determines in good faith, after taking into account the advice of an independent financial advisor of nationally recognized reputation and consulting with the Company’s outside legal counsel, that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal; (iii) the Company Board reasonably determines in good faith, after taking into account the advice of the Company’s outside legal counsel, that such action is required for the Company Board to comply with its fiduciary duties under applicable Delaware Law; and (iv) at least two business days prior to furnishing any such non-public information to, or entering into discussions or negotiations with, such Person, the Company: (A) gives Parent written notice of the identity of such Person and of the Company’s intention to furnish non-public information to, or enter into discussions or negotiations with, such Person; and (B) receives from the Person so requesting such information, and delivers to Parent a copy of, an executed confidentiality agreement containing customary limitations on the use and disclosure of all non-public written and oral information furnished to such Person by or on behalf of the Acquired Companies and customary “standstill” provisions and other terms no less favorable to the Company than the provisions contained in the Confidentiality Agreement as in effect immediately prior to the execution hereofof this Agreement, Stockholder and at least 24 hours prior to furnishing any non-public information to such Person, the Company furnishes such non-public information to Parent (to the extent such non-public information has not been previously furnished by the Company to Parent).
(c) If the Company, any other Acquired Company or any Representative of any Acquired Company receives an Acquisition Inquiry or Acquisition Proposal or any non-public information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, any of the Acquired Companies’ Representatives, then the Company shall promptly (and in no event later than 24 hours after receipt of such Acquisition Inquiry, Acquisition Proposal or request): (i) advise Parent orally and in writing of such Acquisition Inquiry, Acquisition Proposal or request (including the identity of the Person making or submitting such Acquisition Inquiry, Acquisition Proposal or request and the material terms and conditions thereof); and (ii) provide to Parent a copy of any written inquiries, documents or correspondence received by any Acquired Company or any Representative of any Acquired Company. The Company shall keep Parent fully informed on the status of any such Acquisition Inquiry, Acquisition Proposal or request and any modification or proposed modification thereto, and shall promptly (and in no event later than 24 hours after transmittal or receipt of any correspondence or communication) provide Parent with a copy of any correspondence or communication between or otherwise involving any Acquired Company or any Representative of any Acquired Company and the Person that made or submitted such Acquisition Inquiry, Acquisition Proposal or request.
(d) The Company shall immediately cease and cause to be terminated all any existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry or Acquisition Proposal Proposal. The Company shall promptly request each Person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring the Company or sale any of Shares held the other Acquired Companies to return all confidential information heretofore furnished to such Person by Stockholderor on behalf of the Company or any of the other Acquired Companies, and shall refrain from engaging in any future discussions or negotiations between Stockholder terminate all physical and electronic data room access previously granted to any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiationsRepresentatives).
(ce) Notwithstanding the foregoing, the restrictions Any action inconsistent with any provision in this Section 5.2 shall not apply (i) with respect to 7.2 or Section 7.4 that is taken by any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder the Acquired Company, whether or not such Representative is purporting to act on behalf of the other handAcquired Companies, shall constitute a material breach of this Agreement by the Company.
Appears in 2 contracts
Sources: Merger Agreement (Willbros Group, Inc.\NEW\), Merger Agreement (Primoris Services Corp)
Acquisition Proposals. (a) Stockholder The Company agrees that neither it nor any of and its controlled Affiliates (other than the Company or Representatives will not, and will cause its Subsidiaries and its Subsidiaries) shall’ Representatives and affiliates not to, and shall not authorize solicit or permit knowingly encourage inquiries or proposals with respect to, or engage in any negotiations concerning, or provide any confidential information to, or have any discussions with, any person relating to, any Acquisition Proposal. The Company, its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a and each Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or and its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, (i) initiate, encourage, solicit, assist, induce or facilitate the making, submission or announcement of any Acquisition Inquiry or Acquisition Proposal; (ii) furnish or otherwise provide access to any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition Proposal.
(b) Upon the execution hereof, Stockholder shall Representatives will immediately cease and cause to be terminated all existing any activities, discussions or negotiations conducted before the date of this Agreement with any parties (persons other than Parent and its Affiliates) conducted heretofore Acquirer with respect to any Acquisition Inquiry Proposal and will use its reasonable best efforts to enforce any confidentiality or similar agreement relating to an Acquisition Proposal and request the return or sale destruction of Shares held by Stockholder, all copies of any confidential information regarding the Company and shall refrain from engaging in its Subsidiaries provided to any future discussions or negotiations between Stockholder and any Person person (other than Parent Acquirer). The Company and its Affiliates) with respect to any sale each Stockholder will within one business day advise Acquirer following receipt of any Shares held by Stockholder Acquisition Proposal and the substance thereof (other than to state that Stockholder is currently not permitted to engage in including the identity of the person making such discussions or negotiationsAcquisition Proposal), and will keep Acquirer apprised of any related developments on a current basis.
(cb) Notwithstanding In addition to the foregoing, the restrictions Company shall keep Acquirer reasonably informed on a prompt basis of the status and material terms of any such Acquisition Proposal, including any material amendments or proposed amendments as to price and other material terms thereof and any change in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations the Company’s intentions with respect to the transfer of Shares permitted by Section 2.3transactions contemplated hereby and Acquirer shall have the right, or (ii) with respect but not the obligation, to any discussions between offer to amend this Agreement and the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other handtransactions contemplated hereby in order for such Acquisition Proposal to cease to be a Superior Proposal.
Appears in 1 contract
Sources: Merger Agreement (LendingClub Corp)
Acquisition Proposals. (a) Stockholder agrees that neither HBI shall not, nor shall it nor permit any of its controlled Affiliates (other than the Company Subsidiaries to, nor shall it or its Subsidiaries) shall, and shall not Subsidiaries authorize or permit its Representatives (it being understood thatany of their respective officers, for purposes hereofdirectors, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged employees, representatives or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) agents to, directly or indirectly, (i) initiate, encourage, solicit, assistinitiate or knowingly encourage (including by way of furnishing non-public information) any inquiries regarding, induce or facilitate the making, submission or announcement making of any Acquisition Inquiry or proposal which constitutes, any Acquisition Proposal, (ii) enter into any letter of intent or agreement related to any Acquisition Proposal other than a confidentiality agreement (each, an “Acquisition Agreement”) or (iii) participate in any discussions or negotiations regarding, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes, or that would reasonably be expected to lead to, any Acquisition Proposal; provided, however, that if, at any time prior to the HBI Stockholders’ Meeting, and without any breach of the terms of this Section 7.6(a), HBI receives an Acquisition Proposal from any Person that in the good faith judgment of the HBI Board is, or is reasonably likely to lead to the delivery of, a Superior Proposal, HBI may (x) furnish information (including non-public information) with respect to HBI to any such Person pursuant to a confidentiality agreement containing confidentiality provisions no more favorable to such Person than those in the confidentiality agreement between JBI and HBI, and (y) participate in negotiations with such Person regarding such Acquisition Proposal, if the HBI Board determines in good faith, after consultation with counsel, that failure to do so would likely result in a violation of its fiduciary duties under applicable Law.
(b) Except as set forth in Section 10.1(k), neither the HBI Board nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to JBI, the approval or recommendation by the HBI Board or such committee of the Merger or this Agreement; (ii) furnish approve or otherwise provide access recommend, or propose to approve or recommend, any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Inquiry or Acquisition Proposal; or (iviii) otherwise facilitate authorize or permit HBI or any effort or attempt of its Subsidiaries to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition ProposalAgreement.
(bc) Upon the execution hereofHBI agrees that it and its Subsidiaries shall, Stockholder and HBI shall direct its and its Subsidiaries’ respective officers, directors, employees, representatives and agents to, immediately cease and cause to be terminated all existing any activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore Persons with respect to any Acquisition Inquiry Proposal. HBI agrees that it will notify JBI promptly (but no later than 24 hours) if, to HBI’s Knowledge, any Acquisition Proposal is received by, any information is requested from, or any discussions or negotiations relating to an Acquisition Proposal are sought to be initiated or continued with, HBI, its Subsidiaries, or their officers, directors, employees, representatives or agents. The notice shall indicate the name of the Person making such Acquisition Proposal or sale taking such action and the material terms and conditions of Shares held by Stockholderany proposals or offers, and thereafter HBI shall refrain from engaging in any future discussions or negotiations between Stockholder keep JBI informed, on a current basis, of the status and any Person (other than Parent and its Affiliates) with respect to any sale terms of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such proposals or offers and the status of any such discussions or negotiations). HBI also agrees that it will promptly request each Person that has heretofore executed a confidentiality agreement in connection with any Acquisition Proposal to return or destroy all confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries.
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other hand.
Appears in 1 contract
Acquisition Proposals. (a) Stockholder agrees that neither it nor Without limiting any of its controlled Affiliates (other than obligations under this Agreement, the Company or agrees that it and its Subsidiaries) shallSubsidiaries and the officers and directors of it and its Subsidiaries shall not, and that it shall not authorize direct and use its reasonable best efforts to cause the Company and the Company Subsidiaries’ Affiliates, employees, agents and representatives (including any investment banker, attorney or permit its Representatives (accountant retained by it being understood that, for purposes hereof, a Representative or any of the Company shall Subsidiaries) not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, (i) initiate, encourage, solicit, assistentertain, induce encourage or facilitate the making, submission or announcement (including by way of any Acquisition Inquiry or furnishing information) an Acquisition Proposal; , (ii) furnish enter into, consider, continue or otherwise provide access to participate in or pursue in any information regarding manner any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with regarding, or provide any Person with respect confidential information or data to any Acquisition Inquiry or person relating to, an Acquisition Proposal; or (iv) otherwise , knowingly facilitate any effort or attempt to make or implement an Acquisition Inquiry Proposal, or otherwise cooperate in any way with, any Acquisition Proposal (iii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal; or (iv) approve or recommend, or propose to approve or recommend, or execute or enter into into, any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement related to any Acquisition Proposal or propose or agree to do any of the foregoing. The Company will (x) immediately cease and cause to be terminated all activities, discussions or negotiations with any parties with respect to any Acquisition Proposal, other than the Merger and (y) notify the Parent immediately if any Person makes any proposal, offer, inquiry or contact with respect to any of the foregoing (whether solicited or unsolicited).
(b) Notwithstanding anything to the contrary contained in Section 5.11(a) or elsewhere in this Agreement, at any time prior to obtaining the Company Shareholder Approval, to the extent the Board of Directors of the Company in response to a bona fide written Acquisition Proposal, after consultation with independent legal counsel, determines in good faith that such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal, and which Acquisition Proposal was not solicited after the date hereof and was made after the date hereof and did not otherwise result from a breach of Section 5.11(a), that any action otherwise prohibited by Section 5.11(a) is necessary for the Company Board to comply with its fiduciary duties under applicable Law, the Company and its representatives may, subject to compliance with Section 5.11(d), (x) furnish non-public information to, and afford access to the properties, books, records, officers, employees and representatives of the Company to the Person making such Acquisition Proposal (and its Representatives) pursuant to a customary confidentiality agreement not less restrictive to such Person (and no less favorable to the Company) than the confidentiality provisions of the Confidentiality Agreements; and (y) participate in discussions or negotiations with the Person making such Acquisition Proposal (and its Representatives) regarding such Acquisition Proposal; provided that all such information has previously been provided to the Parent or Merger Sub or is provided to the Parent or Merger Sub prior to or substantially concurrent with the time it is provided to such Person, and prior to taking such action, the Company shall (to the extent practicable) provide notice to Parent to the effect that it is taking such action.
(c) The Board of Directors of the Company shall not (and shall not permit any committee thereof to) (i) (A) withdraw (or amend, qualify or modify in a manner adverse to Parent or Merger Sub), or publicly propose to withdraw (or amend, qualify or modify in a manner adverse to Parent or Merger Sub), the approval, adoption or recommendation by such board of directors of this Agreement and the Merger or fail to recommend to the shareholders in the Proxy Statement that they approve the Merger and give the Company Shareholder Approval or (B) endorse, approve, adopt, submit to Company shareholders (including by seeking to obtain an action by written consent of some or all of the Company’s shareholders) or recommend, or propose publicly to endorse, approve, adopt, submit to shareholders of the Company or recommend, any Acquisition Proposal (any action described in this clause (i) being referred to as an “Adverse Recommendation Change”) or (ii) enter into, adopt or recommend, or publicly propose to enter into, adopt or recommend, or allow the Company to execute or enter into, any letter of intent, memorandum of understanding, term sheetagreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document contract constituting or Contract relating related to, or that is intended to or would reasonably be expected to lead to, any Acquisition Inquiry or Acquisition Proposal.
(b) Upon the execution hereof, Stockholder shall immediately cease and cause to be terminated all existing activities, discussions or negotiations with any parties Proposal (other than Parent and its Affiliatesa confidentiality agreement referred to in Section 5.11(b)) conducted heretofore with respect to (any such document, an “Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiationsAgreement”).
(c) . Notwithstanding the foregoing, at any time prior to obtaining the restrictions Company Shareholder Approval and subject to Section 5.11(d), the Board of Directors of the Company may in response to an Acquisition Proposal that the Board of Directors of the Company reasonably in its good faith judgment determines (after consultation with its outside counsel and its financial advisor) constitutes a Superior Proposal and that was unsolicited and made after the date hereof and that did not otherwise result from a breach of this Section 5.2 5.11, (1) make an Adverse Recommendation Change if such action is required for the Board of Directors of the Company to comply with their fiduciary duties under applicable Laws or (2) if such action is required for the Board of Directors of the Company to comply with their fiduciary duties under applicable Laws, cause the Company to terminate this Agreement pursuant to Section 9.1(e) and concurrently with such termination enter into an Acquisition Agreement; provided, however, that the Company shall not apply be entitled to exercise its right to make an Adverse Recommendation Change or terminate this Agreement pursuant to Section 9.1(e) until after the fifth business day following receipt by Parent and Merger Sub of written notice (ia “Notice of Superior Proposal”) from the Company advising Parent and Merger Sub that the Board of Directors of the Company intends to take such action and specifying the reasons therefor, including the material terms and conditions of any Superior Proposal that is the basis of the proposed action by the Board of Directors of the Company (including a copy thereof with respect to any discussions or negotiations with respect all accompanying documentation and the identity of Person making such Superior Proposal). During such five-business-day period, Parent and Merger Sub may offer the Company adjustments to the transfer terms and conditions of Shares permitted this Agreement that will permit the Board of Directors of the Company to determine that, with such adjustments, the Merger is at least as favorable to the shareholders as such Superior Proposal. In determining whether to make an Adverse Recommendation Change or to cause the Company to so terminate this Agreement, the Board of Directors of the Company shall take into account any changes to the financial or other terms of this Agreement proposed by Section 2.3, Parent and Merger Sub in response to a Notice of Superior Proposal or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other handotherwise.
Appears in 1 contract
Acquisition Proposals. From the date hereof until the Closing Date or, if earlier, the termination of this Agreement in accordance with Article X, the Company and its Subsidiaries shall not, and the Company shall instruct and use its reasonable best efforts to cause its Subsidiaries, Affiliates and their respective representatives, not to (a) Stockholder agrees that neither it nor any of its controlled Affiliates (other than the Company or its Subsidiaries) shall, and shall not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, (i) initiate, encourage, solicit, assist, induce initiate or facilitate the making, submission or announcement of knowingly participate in any Acquisition Inquiry or Acquisition Proposal; (ii) furnish or otherwise provide access to any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to, or knowingly provide any non-public information or data concerning the Company or any of the Company’s Subsidiaries to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement Person relating to, an Acquisition Inquiry or Acquisition Proposal or knowingly afford to any Person access to the business, properties, assets or personnel of the Company or any of the Company’s Subsidiaries in connection with an Acquisition Proposal, (b) enter into any acquisition agreement, merger agreement in principleor similar definitive agreement, or any letter of intent, memorandum of understandingunderstanding or agreement in principle, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger or any other agreement or other similar document or Contract relating to any Acquisition Inquiry or an Acquisition Proposal.
, (bc) Upon grant any waiver, amendment or release under any confidentiality agreement executed in connection with an Acquisition Proposal or the execution anti-takeover Laws of any state, or (d) otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make an Acquisition Proposal. From and after the date hereof, Stockholder the Company shall, and shall instruct and use its reasonable best efforts to cause its officers and directors to, and the Company shall instruct and shall use its reasonable best efforts to cause its representatives, its Subsidiaries and Affiliates and their respective representatives to, immediately cease and cause to be terminated terminate all existing activities, discussions or and negotiations with any parties (other than Parent and its Affiliates) conducted heretofore Persons that may be ongoing with respect to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent Acquiror and its Affiliates) representatives). From and after the date hereof, the Company shall promptly notify Acquiror if any Person makes any written proposal, offer or inquiry with respect to any sale an Acquisition Proposal and provide Acquiror with a description of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect material terms and conditions thereof to the transfer extent that such disclosure would not result in breach of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on Company’s confidentiality obligations that are in existence as of the one hand, and any Affiliate or Representative of Stockholder on the other handdate hereof.
Appears in 1 contract
Acquisition Proposals. (a) Stockholder agrees that neither it Except with respect to this Agreement and the transactions contemplated hereby, no FSB Company nor CBC Company nor any of its controlled Affiliates director, employee, investment banker, attorney, accountant or other representative thereof (other than the collectively, "Representatives") retained by any FSB Company or its Subsidiaries) shallCBC Company, and as the case may be, shall not authorize directly or permit its Representatives (it being understood that, for purposes hereof, a Representative of indirectly solicit any Acquisition Proposal by any Person. Except to the Company shall not constitute a Representative extent necessary to comply with the fiduciary duties of a Stockholder unless such Stockholder Party's Board of Directors as advised by counsel, no FSB Company nor CBC Company nor Representative thereof, shall have separately engaged or directed such Person in hisfurnish any non-public information that it is not legally obligated to furnish, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) negotiate with respect to, directly or indirectlyenter into any Contract with respect to, any Acquisition Proposal, but a Party may communicate information about such an Acquisition Proposal to its shareholders if and to the extent that it is required to do so in order to comply with its legal obligations as advised by counsel. Each Party shall promptly notify the other orally and in writing in the event that it receives any inquiry or proposal relating to any such transaction.
(b) Except as set forth herein, neither FSB nor CBC shall (i) initiatewithdraw or modify, encourageor propose to withdraw or modify, solicitin a manner adverse to the other Party, assistthe approval or recommendation of its Board of Directors of this Agreement or the Merger, induce or facilitate the making, submission or announcement of any Acquisition Inquiry or Acquisition Proposal; (ii) furnish approve or otherwise provide access recommend, or propose to any information regarding any Acquired Company to any Person in connection with approve or in response to recommend, any Acquisition Inquiry Proposal or Acquisition Proposal; (iii) engage in discussions or negotiations with enter into any Person agreement with respect to any Acquisition Inquiry Proposal. Notwithstanding the foregoing, if in the opinion of the Board of Directors of FSB or CBC, as applicable, after consultation with counsel, failure to do so would be inconsistent with its fiduciary duties to its shareholders under applicable law, then the Board of Directors of FSB or CBC, as applicable, may (subject to the terms of this section (b)) withdraw or modify its approval or recommendation of this Agreement or the Merger, approve or recommend an Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal , or enter into any an agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition Proposal.
(b) Upon the execution hereof, Stockholder shall immediately cease and cause to be terminated all existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect to an Acquisition Proposal, in each case at any time after the second business day following the receipt of written notice (a "Notice of Acquisition Inquiry Proposal") by CBC or FSB, as applicable, advising it that the other Party has received an Acquisition Proposal or sale Proposal, specifying the material terms and conditions of Shares held by Stockholder, such proposal and identifying the Person making such proposal; provided that neither Party shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) enter into an agreement with respect to any sale an Acquisition Proposal unless it shall have furnished the other Party with written notice no later than 12:00 noon Georgia time one (1) day in advance of any Shares held by Stockholder (other than date that it intends to state that Stockholder is currently not permitted to engage in enter into such discussions or negotiations)agreement.
(c) Notwithstanding In addition to the foregoingobligations set forth in section (b) above, each Party shall immediately advise the other Party orally and in writing of any request for information or of any Acquisition Proposal, or any inquiry with respect to or which could lead to an Acquisition Proposal, the restrictions material terms and conditions of such request, Acquisition Proposal or inquiry, and the identity of the Person making a request, Acquisition Proposal or inquiry. FSB or CBC, as the case may be, shall keep the other Party fully informed of the status and details (including amendments or proposed amendments) of any such request, Acquisition Proposal or inquiry.
(d) Nothing contained in this Section 5.2 8.7 shall not apply prohibit FSB or CBC, as the case may be, from making any disclosure to its shareholders if, in the opinion of its Board of Directors, after consultation with counsel, failure to so disclose would be inconsistent with federal securities laws or its fiduciary duties to its shareholders under applicable law; provided that the applicable Party does not, except as permitted by section (ib) with respect above, withdraw or modify, or propose to any discussions withdraw or negotiations modify, its position with respect to the transfer of Shares permitted by Section 2.3Merger or approve or recommend, or (ii) with respect propose to any discussions between the Stockholderapprove or recommend, on the one hand, and any Affiliate or Representative of Stockholder on the other handan Acquisition Proposal.
Appears in 1 contract
Sources: Merger Agreement (First Southern Bankshares Inc/Ga)
Acquisition Proposals. (a) Stockholder agrees that neither Subject to Section 8.10(b), from the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VIII, the Company shall not, nor shall it nor permit any of its controlled Affiliates (other than the Company or its Subsidiaries) shallsubsidiaries to, and nor shall not it authorize or permit any of its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, indirectly through another Person: (i) solicit, initiate, encourageor knowingly encourage the submission, solicit, assist, induce announcement or facilitate the making, submission or announcement making of any Acquisition Inquiry Proposal or Acquisition ProposalInquiry by any Person, or take any action that could reasonably be expected to lead a Person to disclose, announce, commence, submit or otherwise make an Acquisition Proposal or Acquisition Inquiry; (ii) furnish or otherwise provide access to any information, except information relating to the existence of these provisions, regarding any Acquired of the Company or its subsidiaries to any Person in connection with or in response to any an Acquisition Inquiry Proposal or Acquisition ProposalInquiry; or (iii) engage in discussions (except as to the existence of these provisions) or negotiations with any Person with respect to any Acquisition Inquiry Proposal or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt Inquiry. Subject to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principleSection 8.10(b), letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition Proposal.
(b) Upon from the execution hereof, Stockholder date hereof the Company shall immediately cease and cause to be terminated all existing activitiesany solicitation, discussions encouragement, discussion or negotiations negotiation with any parties (other than Parent and Persons conducted theretofore by the Company, its Affiliates) conducted heretofore subsidiaries or any of their respective Representatives with respect to any Acquisition Inquiry Proposal or Acquisition Inquiry.
(b) Notwithstanding anything to the contrary contained in Section 8.10(a), if at any time prior to the Company Stockholders Meeting the Company receives an Acquisition Proposal or sale Acquisition Inquiry which the board of Shares held directors of the Company determines constitutes or could reasonably be likely to result in a Superior Proposal, the Company may, in response to such Acquisition Proposal or Acquisition Inquiry (provided such Acquisition Proposal or Acquisition Inquiry did not result from a breach by Stockholderthe Company of any provision herein), (A) furnish information with respect to it and its subsidiaries to any Person making such Acquisition Proposal or Acquisition Inquiry pursuant to a customary confidentiality agreement (as determined after consultation with the Company’s legal counsel), the benefits of the terms of which, if more favorable to the other party to such confidentiality agreement than those contained in the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”), shall be extended to Acquiror, and (B) participate in discussions and negotiations regarding such Acquisition Proposal or Acquisition Inquiry. From and after the date hereof, if the Company receives an Acquisition Proposal or Acquisition Inquiry, it shall promptly advise Acquiror in writing of such Acquisition Proposal or Acquisition Inquiry and the material terms and conditions thereof. The Company shall promptly provide Acquiror with copies of all proposed definitive documents received by the Company or any of its Representatives from any such Person or its Representatives relating to any Acquisition Proposal and shall keep Acquiror reasonably informed with respect to the status of any such Acquisition Proposal or Acquisition Inquiry and any modification or proposed modification thereto, and shall refrain from engaging in promptly notify Acquiror of any future discussions material change or negotiations between Stockholder and any Person (other than Parent and its Affiliates) development with respect to any sale such Acquisition Proposal or Acquisition Inquiry. In connection with furnishing or otherwise permitting the transmittal of any Shares held material non-public information to any Person pursuant to this Section 8.10(b), the Company shall (as a condition to furnishing or otherwise permitting the transmittal of such information to such Person) promptly furnish such information to Acquiror (to the extent such information has not been previously furnished or made available by Stockholder (other than the Company to state that Stockholder is currently not permitted to engage in such discussions or negotiationsAcquiror).
(c) Except as expressly permitted by this Section 8.10(c), the board of directors of the Company shall not (i) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Acquiror, the approval or recommendation by such board of directors of this Agreement or the approval of this Agreement by the stockholders at the Company Stockholders Meeting (a “Change of Recommendation”), (ii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal, or (iii) cause or permit the Company to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement or understanding (an “Acquisition Agreement”) related to any Acquisition Proposal other than an Acceptable Confidentiality Agreement entered into pursuant to Section 8.10(b). Notwithstanding the foregoingimmediately preceding sentence, prior to the restrictions adoption of this Agreement by the Company’s stockholders at the Company Stockholders Meeting, (x) in response to the receipt of a written Acquisition Proposal in connection with which the Company has not breached Section 8.10(a) in a manner that resulted in the submission of an Acquisition Proposal (and subject to Section 8.10(b), if the board of directors of the Company determines in good faith that such Acquisition Proposal is a Superior Proposal and, after consultation with its legal counsel, determines that its failure to take such actions would be reasonably likely to be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law, then the board of directors of the Company may approve or recommend such Superior Proposal and, in connection with the approval or recommendation of such Superior Proposal, make a Change of Recommendation and/or terminate this Agreement (and subject to Article X, in connection with such termination, if it so chooses, cause the Company to enter into an Acquisition Agreement with respect to such Superior Proposal).
(d) Nothing in this Section 5.2 8.10 shall prohibit the board of directors of the Company from taking and disclosing to the Company’s stockholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, or other applicable Law, if the board of directors of the Company determines, after consultation with legal counsel, that failure to so disclose such position could constitute a violation of applicable Law, and any such disclosure which would otherwise constitute a withdrawal, change or modification of the approval or recommendation of the board of directors of the Company, shall not apply (i) with respect be deemed to any discussions constitute such a withdrawal, change or negotiations modification with respect to the transfer Merger for the purposes of Shares permitted Section 8.10(c) if the board of directors of the Company expressly publicly reaffirms its approval and recommendation of this Agreement within five (5) Business Days after a request by Acquiror to do so. In addition, it is understood and agreed that, for purposes of this Section 2.38.10, a factually accurate public statement by the Company that describes the Company’s receipt of an Acquisition Proposal and the operation of this Agreement with respect thereto and contains a “stop-look-and-listen” communication shall not constitute a withdrawal, change or (ii) modification of the approval or recommendation of the board of directors of the Company with respect to any discussions between the Stockholder, on Merger for the one hand, and any Affiliate or Representative purposes of Stockholder on the other handSection 8.10(c).
Appears in 1 contract
Sources: Merger Agreement (Clean Harbors Inc)
Acquisition Proposals. (a) Stockholder agrees that From the date of this Agreement until the Closing Date or, if earlier, the termination of this Agreement, neither it the Acquiror nor any of its controlled Affiliates (other than the Company or its Subsidiaries) shallAcquiror Sole Shareholder will, and shall not neither the Acquiror nor any Acquiror Sole Shareholder will authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative the any representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged Acquiror or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) any Acquiror Sole Shareholder to, directly or indirectly, : (i) solicit, initiate, knowingly encourage, solicit, assist, induce or facilitate the making, submission or announcement of any Acquisition Inquiry Competing Transaction Proposal from any Person (other than Acquiree or Acquisition the Acquiree Shareholders, a “Third Party”) or take any action that could reasonably be expected to lead to a Competing Transaction Proposal; , (ii) furnish or otherwise provide access to any information regarding any Acquired Company the Acquiror to any Person Third Party in connection with or in response to any Acquisition Inquiry a Competing Transaction Proposal or Acquisition Proposal; an inquiry or indication of interest, (iii) engage in or continue any discussions or negotiations with any Person Third Party with respect to any Acquisition Inquiry or Acquisition Competing Transaction Proposal; or , (iv) otherwise facilitate approve, endorse or recommend any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Competing Transaction Proposal or (v) enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement intent or other similar document or any Contract contemplating or otherwise relating to any Acquisition Inquiry or Acquisition Competing Transaction Proposal.
(b) Upon Concurrently with the execution hereofof this Agreement, Stockholder Acquiror and the Acquiror Sole Shareholder shall (i) immediately cease and cause to be terminated all any existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect Person that relate to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or Competing Transaction Proposal; (ii) as soon as practicable request each Person that has executed, within twelve (12) months prior to the date of this Agreement, a confidentiality agreement in connection with respect its consideration of a possible Competing Transaction Proposal to return or destroy all confidential information relating to the Acquiror heretofore furnished to such Person by or on behalf of any discussions Acquiror Sole Shareholder or the Acquiror, subject to whatever rights, if any, that such Person has to retain any such information or avoid any demand for its return or destruction pursuant to the terms of the confidentiality agreement between the Stockholder, on the one hand, such Person and any Affiliate Acquiror Sole Shareholder or Representative of Stockholder on the Acquiror; and (iii) cause any physical or virtual data room containing any such information to no longer be accessible to or by any Person other handthan Acquiree, the Acquiree Shareholders and their respective representatives.
Appears in 1 contract
Acquisition Proposals. (a) Stockholder agrees that neither it nor From the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement pursuant to Article 8, the Company will not, and will cause its Subsidiaries and each officer, director, employee, consultant, financial advisor, auditor, investment banker, attorney, accountant, agent or other advisor or representative (collectively, the “Representatives”) of the Company or any of its controlled Affiliates (other than the Company or its Subsidiaries) shall, and shall Subsidiaries not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, (i) initiate, encourage, solicit, assist, induce initiate or knowingly encourage or facilitate (including by way of furnishing information) the makingmaking by, submission or announcement take any action that is reasonably expected to lead to the making by, any Person (other than Parent) of any Acquisition Inquiry or Acquisition Proposal; , (ii) furnish engage in any discussions or otherwise negotiations regarding, or provide access to any information regarding any Acquired Company the Company’s books, receipts, properties or employees or furnish to any Person in connection with any confidential information or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person data with respect to any Acquisition Inquiry Proposal or any inquiries with respect to any Acquisition Proposal; , or (iviii) otherwise facilitate enter into any effort agreement, understanding or attempt arrangement with respect to make or implement an Acquisition Inquiry Proposal, or approve or recommend or propose to approve or recommend any Acquisition Proposal or any agreement, arrangement or understanding relating to an Acquisition Proposal (or resolve or authorize or propose to agree to do any of the foregoing); provided that nothing contained in this Section 6.05(a) shall prohibit the Company from furnishing information to, or entering into discussions or negotiations with, any Person that has expressed a bona fide written interest in making an Acquisition Proposal after the date of this Agreement, if (i) the board of directors of the Company (or a committee thereof) by a majority vote determines in good faith, after consultation with the Company’s outside counsel and financial advisors, that such Acquisition Proposal constitutes or would reasonably be expected to lead to a Superior Proposal, (ii) the Required Company Vote has not yet been obtained, and (iii) prior to its receipt of confidential information such Person enters into a confidentiality agreement with the Company on terms that are no less favorable to the Company than the corresponding terms contained in the Confidentiality Agreement. The Company shall notify Parent of having received any written expression of interest in making an Acquisition Proposal (which notice shall be provided orally and in writing and shall identify the Person making such Acquisition Proposal and set forth the material terms thereof) no later than twenty-four (24) hours after its receipt thereof, and shall keep Parent reasonably informed as to the status of any such proposal and any such discussions or negotiations, including with respect to any material modifications to the terms of any Acquisition Proposal. Neither the Company nor its Subsidiaries will enter into any confidentiality agreement in principle, letter with any Person subsequent to the date of intent, memorandum this Agreement which prohibits the Company or any of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating its Subsidiaries from providing such information to any Acquisition Inquiry or Acquisition Proposal.
(b) Upon Parent. Immediately after the execution hereofand delivery of this Agreement, Stockholder shall immediately the Company will and will cause its Subsidiaries and its and their Representatives to (i) cease and cause to be terminated all terminate any existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) Persons conducted heretofore with respect to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, unless any such Person makes a Superior Proposal following the date hereof and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or (ii) with respect to fully enforce the provisions of any discussions between confidentiality agreements entered into by the StockholderCompany or any of its Subsidiaries (or their respective representatives), on the one hand, and including by not waiving or otherwise modifying any Affiliate “standstill” or Representative of Stockholder on the other handsimilar restriction contained therein.
Appears in 1 contract
Sources: Agreement and Plan of Amalgamation (Quanta Capital Holdings LTD)
Acquisition Proposals. (a) Stockholder agrees that neither it nor any of its controlled Affiliates (other than Except as permitted by this Section 5.2, the Company or its Subsidiaries) shallshall not, and shall cause its Subsidiaries not authorize to, and shall use its reasonable best efforts to cause its and their directors, officers, employees, other Affiliates, investment bankers, attorneys, accountants and other advisors or permit its Representatives representatives (it being understood thatcollectively, for purposes hereof, a Representative of the Company shall “Representatives”) not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, indirectly (i) initiateinitiate or solicit, or knowingly facilitate or encourage, solicitany inquiries, assist, induce discussions or facilitate requests with respect to or the making, submission or announcement making of any proposal or offer that constitutes or would reasonably be expected to lead to an Acquisition Inquiry or Acquisition Proposal; Proposal (an “Inquiry”), (ii) furnish engage in or otherwise participate in any discussions or negotiations regarding an Acquisition Proposal or Inquiry or that would reasonably be expected to lead to an Acquisition Proposal, or provide any access to its properties, books or records or any non-public information regarding any Acquired Company to any Person relating to the Company or any of its Subsidiaries in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; the foregoing, (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, other acquisition agreement, option agreement, joint venture agreement, partnership agreement, letter of intent, term sheet, merger agreement or similar agreement (other similar document than an Acceptable Confidentiality Agreement) with respect to an Acquisition Proposal (an “Alternative Acquisition Agreement”), (iv) approve, endorse, declare advisable or Contract relating recommend any Acquisition Proposal, (v) take any action to make the provisions of any Takeover Statute or any restrictive provision of any applicable anti-takeover provision in the certificate of incorporation or bylaws of the Company inapplicable to any transactions contemplated by any Acquisition Inquiry Proposal or Acquisition Proposal.
(bvi) Upon authorize, commit to, agree or publicly propose to do any of the execution hereofforegoing. As of the No-Shop Period Start Date (as defined in the Original Agreement), Stockholder shall the Company has, and has caused its Subsidiaries and its and their directors, officers and employees and has instructed its Affiliates and other Representatives to immediately cease and cause to be terminated all existing activitiessolicitations, discussions or and negotiations with any parties Persons (other than Parent and its AffiliatesRepresentatives) conducted heretofore that may be ongoing with respect to any Acquisition Inquiry or an Acquisition Proposal or sale of Shares held by Stockholder, Inquiry and shall refrain from engaging in any future discussions or negotiations between Stockholder and any request that each such Person (other than Parent and its AffiliatesRepresentatives) promptly return or destroy all confidential information furnished to such Person by or on behalf of the Company in connection with any such Acquisition Proposal or Inquiry.
(b) Notwithstanding anything to the contrary contained in Section 5.2(a) or elsewhere in this Agreement, at any time following the date of this Agreement and prior to the Expiration Date, if the Company, directly or indirectly through one or more of its Representatives, receives a written unsolicited and bona fide Acquisition Proposal that did not result from a breach of this Section 5.2, the Company and its Representatives may contact the Person or group of Persons making such Acquisition Proposal to clarify the terms and conditions thereof so as to determine whether such Acquisition Proposal constitutes, or could reasonably be expected to result in, a Superior Proposal, and may (i) provide information to such Person or group of Persons (including their respective Representatives and prospective equity and debt financing sources) if the Company receives from such Person or group of Persons (or has received from such Person or group of Persons) an executed confidentiality agreement containing terms that are not less favorable in any material respect to the Company than those contained in the Confidentiality Agreement, except that such confidentiality agreement need not contain any sale standstill or similar provision (an “Acceptable Confidentiality Agreement”); provided, that the Company shall make available to Parent and Merger Sub any non-public information concerning the Company or its Subsidiaries that is provided to any such Person or group of Persons which was not previously made available to Parent or Merger Sub substantially concurrently (and in any Shares held by Stockholder event within twenty-four (other than 24) hours thereafter), and (ii) engage or participate in any discussions or negotiations with such Person or group of Persons, if prior to state taking any action described in clause (i) or (ii) above, (A) the Company Board (acting upon the recommendation of the Special Committee) and the Special Committee determine in good faith after consultation with their financial advisor and outside legal counsel that Stockholder such Acquisition Proposal constitutes, or would reasonably be expected to result in, a Superior Proposal and (B) the Company Board (acting upon the recommendation of the Special Committee) and the Special Committee determine in good faith after consultation with their outside legal counsel that failure to take such action would be reasonably likely to be inconsistent with their fiduciary obligations under applicable Law. It is currently not understood and agreed that any contacts, disclosures, discussions or negotiations permitted under this Section 5.2(b), including any public announcement that the Company Board (acting upon the recommendation of the Special Committee) and the Special Committee have made any determination required under this Section 5.2(b) to take or engage in any such discussions actions (provided that the Company Board expressly publicly reaffirms the Company Recommendation in connection with such disclosure), shall not constitute a Change of Recommendation or negotiations)otherwise constitute a basis for Parent to terminate this Agreement pursuant to Section 7.4.
(c) Except as set forth in this Section 5.2(c) or in Section 5.2(d), neither the Company Board nor any committee thereof (including the Special Committee) shall (1) withhold, withdraw, qualify or modify (or publicly propose to withhold, withdraw, qualify or modify), in each case in a manner adverse to Parent, the Company Recommendation, (2) fail to include the Company Recommendation in the Schedule 14D-9, (3) adopt, approve or recommend or endorse or otherwise declare advisable, or publicly propose to adopt, approve or recommend, any Acquisition Proposal, (4) fail to publicly reaffirm the Company Recommendation within ten (10) Business Days after Parent so requests in writing following any public disclosure of an Acquisition Proposal (other than of the type referred to in the proviso to the following clause (5)) from any Person other than Parent and Merger Sub or any of their respective Affiliates (provided, that if the Expiration Date is scheduled to occur within ten (10) Business Days from the date of such written request, promptly and in any event prior to the date that is two (2) Business Days before the Expiration Date) or (5) fail to recommend, in a Solicitation/Recommendation Statement on Schedule 14D-9 under the Exchange Act, against any Acquisition Proposal that is a tender offer or exchange offer subject to Regulation 14D promulgated under the Exchange Act within ten (10) Business Days after the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of such tender offer or exchange offer (or if the Expiration Date is scheduled to occur within ten (10) Business Days from the date of such commencement, promptly and in any event prior to the date that is two (2) Business Days before the Expiration Date) (any of the foregoing, a “Change of Recommendation”); provided, that any communication made in accordance with Section 5.2(d)(ii) or the failure by the Company Board or the Special Committee to take a position with respect to an Acquisition Proposal referred to in the preceding clause (4) or a tender offer or exchange offer referred to in the preceding clause (5), shall not be deemed a Change of Recommendation if such communication is made or such position is taken prior to the tenth (10th) Business Day after the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of such tender offer or exchange offer (or, if earlier, no fewer than two (2) Business Days prior to the Expiration Date) or Parent’s written request following the public disclosure of such Acquisition Proposal, as applicable (or such earlier time as referenced above). Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, prior to the Expiration Date, (x) if an Intervening Event occurs and the Special Committee determines in good faith, after consultation with its outside legal counsel, that failure to effect a Change of Recommendation in light of such Intervening Event would be reasonably likely to be inconsistent with their fiduciary obligations under applicable Law, the Company Board (acting upon the recommendation and direction of the Special Committee) may effect a Change of Recommendation contemplated by clauses (1) or (2) of the definition thereof or (y) if the Company receives, directly or indirectly through one or more of its Representatives, an unsolicited, written, bona fide Acquisition Proposal that the Company Board (acting upon the recommendation of the Special Committee) and the Special Committee concludes in good faith, after consultation with their financial advisor and outside legal counsel, constitutes a Superior Proposal and such Acquisition Proposal did not result from a material breach by the Company of this Section 5.2, the Company Board (acting upon the recommendation of the Special Committee) and the Special Committee may effect a Change of Recommendation and/or terminate this Agreement pursuant to Section 7.3(a) in order to enter into an Alternative Acquisition Agreement providing for such Superior Proposal, and, in the case of either clause (x) or (y):
(i) the Company shall have provided prior written notice to Parent, at least three (3) Business Days in advance, that it intends to effect a Change of Recommendation (a “Notice of Change of Recommendation”) and/or terminate this Agreement pursuant to Section 7.3(a), which notice shall specify in reasonable detail the basis for the Change of Recommendation and/or termination and (A) in the case of a Superior Proposal, the identity of the Person or group of Persons making such Superior Proposal and the material terms thereof, along with a copy of any proposed agreement in respect of such Superior Proposal (or, if there is no such proposed agreement, a written summary of the material terms and conditions of such Superior Proposal); or (B) in the case of an Intervening Event, reasonable detail regarding the Intervening Event;
(ii) after providing such notice and prior to effecting such Change of Recommendation and/or terminating this Agreement pursuant to Section 7.3(a), the Company shall have negotiated, and shall have caused its Representatives to be available to negotiate, with Parent and Merger Sub in good faith (to the extent Parent and Merger Sub desire to negotiate) during such three (3) Business Day period (the “Notice Period”) to make such adjustments to the terms and conditions of this Agreement as would obviate the need for the Company to effect a Change of Recommendation and/or terminate this Agreement pursuant to Section 7.3(a); and
(iii) following the end of the Notice Period, the Company Board (acting upon the recommendation of the Special Committee) and the Special Committee shall have determined in good faith, after consultation with their outside legal counsel and, with respect to clause (A) below, their financial advisor, taking into account any changes to this Agreement proposed in writing by Parent in response to the Notice of Change of Recommendation, that (A) the Superior Proposal giving rise to the Notice of Change of Recommendation continues to be a Superior Proposal or (B) in the case of an Intervening Event, the failure of the Company Board and the Special Committee to effect a Change of Recommendation would continue to be reasonably likely to be inconsistent with its fiduciary obligations under applicable Law. Any amendment to the financial terms or any other material change to the terms of a Superior Proposal shall require the Company to deliver a new Notice of Change of Recommendation and the Company shall be required to comply again with the requirements of clauses (i) – (iii) above; provided, however, that subsequent to the initial Notice Period, the Notice Period shall be reduced to two (2) Business Days following receipt by Parent of any such new Notice of Change of Recommendation.
(d) Nothing contained in this Section 5.2 or elsewhere in this Agreement shall be deemed to prohibit the Company, Company Board or any committee thereof (including the Special Committee) from (i) complying with its disclosure or fiduciary obligations under applicable Law or disclosure obligations under NYSE rules, including taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) under the Exchange Act (or any similar communication to stockholders) or (ii) making any “stop-look-and-listen” communication to stockholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act (or any similar communications to stockholders of the Company, including any such similar communication in response to an Acquisition Proposal that is not a tender offer or exchange offer); provided, however, that (x) except as provided in the next sentence, any disclosure made as permitted under clause (i) of this Section 5.2(d) (other than any “stop-look-and-listen” or similar communication) that relates to an Acquisition Proposal shall be deemed to be a Change of Recommendation unless the Company Board (acting upon the recommendation of the Special Committee) and the Special Committee expressly publicly reaffirm the Company Recommendation in connection with such disclosure, and (y) none of the Company, the Company Board, or the Special Committee shall be permitted to recommend any Acquisition Proposal (including that the stockholders of the Company tender any securities in connection with any tender offer or exchange offer that is an Acquisition Proposal) or otherwise effect a Change of Recommendation with respect thereto, except as permitted by Section 5.2(c). It is understood and agreed that any “stop-look-and-listen” or similar communication permitted under clause (ii) of this Section 5.2(d) made prior to the tenth (10th) Business Day after the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of such tender offer or exchange offer shall not constitute a Change of Recommendation or otherwise constitute a basis for Parent to terminate this Agreement pursuant to Section 7.4. The Company shall in no event be deemed to violate this Section 5.2 as a result of responding to any unsolicited proposal or inquiry solely by advising the Person making such proposal or inquiry of the terms of this Section 5.2.
(e) The Company shall promptly (and, in any event, within twenty-four (24) hours) notify Parent in writing if, from and after May 6, 2021, any Acquisition Proposal is received by the Company, any of its Subsidiaries or any of its or their Representatives, indicating (except to the extent prohibited by applicable Law or Contract in effect as of May 6, 2021) the identity of the Person or group of Persons making such Acquisition Proposal and the material terms and conditions of any such Acquisition Proposal (including, if applicable, providing copies of any written Acquisition Proposal and any proposed agreements related thereto). Without limiting the foregoing, the restrictions Company shall (x) promptly (and in any event within twenty-four (24) hours) notify Parent in writing (i) if the Company determines to begin providing non-public information or to engage in negotiations or discussions concerning an Acquisition Proposal in accordance with this Section 5.2 shall not apply and (iii) with respect thereafter of any change to the financial or other material terms and conditions of any Acquisition Proposal, and (y) otherwise keep Parent reasonably informed of the status and material terms of any such Acquisition Proposal, discussions or negotiations with respect on a reasonably prompt basis, including by providing a copy of all written proposals, offers or drafts of proposed agreements. The Company shall not, and shall cause its Subsidiaries not to, after May 6, 2021, enter into any confidentiality or similar agreement that would prohibit it from providing such information to Parent.
(f) Notwithstanding anything to the transfer of Shares permitted by Section 2.3contrary contained in this Agreement, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other hand.the
Appears in 1 contract
Acquisition Proposals. (a) Stockholder agrees that neither it nor any of its controlled Affiliates (other than From and after the Company or its Subsidiaries) shall, and shall not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative execution of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder Merger Agreement until the earlier to occur of the Company and not as an officer, director or employee termination of the Company) toMerger Agreement and the Effective Time, directly or indirectly, (i) initiate, encourage, solicit, assist, induce or facilitate the making, submission or announcement of any Acquisition Inquiry or Acquisition Proposal; (ii) furnish or otherwise provide access Fusion-io and its subsidiaries are required to any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition Proposal.
(b) Upon the execution hereof, Stockholder shall immediately cease any and cause to be terminated all existing activities, discussions or negotiations with any parties persons conducted with respect to any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, as defined below. Fusion-io and its subsidiaries shall not, and shall not authorize or permit any of their respective directors, officers or other employees, controlled affiliates, or any investment banker, attorney or other advisors or representatives retained any of them to, directly or indirectly: • solicit, initiate, knowingly encourage, knowingly assist, knowingly facilitate or knowingly induce the making, submission or announcement of, any proposal or transaction that constitutes or may reasonably be expected to lead to an Acquisition Proposal or Acquisition Transaction, as defined below; • participate or engage in discussions or negotiations with any person (other than Parent and or Purchaser) regarding any proposal or transaction that constitutes or may reasonably be expected to lead to an Acquisition Proposal or Acquisition Transaction; • furnish any non-public information relating to Fusion-io or any of its Affiliatessubsidiaries, or afford access to the business, properties, assets, books or records of Fusion-io or any of its subsidiaries to, or take any other action intended to knowingly encourage, or assist or facilitate, any person (other than Parent or Purchaser) conducted heretofore with respect that is seeking to make or has made any proposal or transaction that constitutes or may reasonably be expected to lead to an Acquisition Proposal or Acquisition Transaction; • enter into any letter of intent, memorandum of understanding, definitive agreement or similar document or contract or commitment contemplating or otherwise relating to any Acquisition Inquiry Proposal or Acquisition Transaction (other than a nondisclosure agreement meeting certain requirements specified in the Merger Agreement); • approve, endorse or recommend any Acquisition Proposal; • terminate, amend, waive or fail to enforce any rights under any standstill or other similar agreement between Fusion-io or any of its subsidiaries and any person (other than Parent), provided, however, that at any time prior to the Offer Closing, Fusion-io may waive or provide a consent under any standstill to permit a party to make a confidential Acquisition Proposal in compliance with the requirements of the Merger Agreement; or sale • waive the applicability of Shares held by Stockholderall or any portion of Section 203 of the DGCL, and shall refrain from engaging the Delaware anti-takeover statute, in any future discussions or negotiations between Stockholder and respect of any Person (other than Parent and its Affiliates) in relation to any Acquisition Proposal or Acquisition Transaction. However, prior to the Acceptance Time, the Fusion-io Board may: • engage or participate in discussions or negotiations with any person that has made and not withdrawn a bona fide, written Acquisition Proposal that the Fusion-io Board concludes in good faith (after consultation with its financial advisor of nationally recognized standing and its outside legal counsel) constitutes or is reasonably likely to lead to a Superior Proposal (as defined below); and • furnish to such person non-public information relating to Fusion-io and its subsidiaries pursuant to a nondisclosure agreement the terms of which are no less favorable to Fusion-io than those contained in the Nondisclosure Agreement (which shall not include any provisions that would prevent or restrict Fusion-io or its representatives from providing any information to Parent to which Parent is entitled under the Merger Agreement or a direct or indirect standstill); provided, however, in order to take any action described in the two bullets above with respect to such Acquisition Proposal, any other Acquisition Proposal made by the same person or an affiliate of such person, or otherwise in favor of such person or an affiliate of such person, (i) neither Fusion-io nor any of its subsidiaries can have breached or violated in any material respect its obligations described in this Section 11—"The Merger Agreement; Other Agreements—Merger Agreement—Acquisition Proposals," (ii) the Fusion-io Board must have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would reasonably be expected to constitute a breach of its fiduciary duties to Fusion-io's stockholders under Delaware law, (iii) Fusion-io must give Parent prior written notice of the Acquisition Proposal, and of Fusion-io's intention to take such actions and (iv) contemporaneously with furnishing any non-public information to such person, Fusion-io shall also furnish such non-public information to Parent to the extent not been previously furnished to Parent. Fusion-io shall promptly advise Parent in writing of any bona fide Acquisition Proposal, any request for information that would reasonably be expected to lead to an Acquisition Proposal or Acquisition Transaction or any inquiry that would reasonably be expected to lead to any Acquisition Proposal or Acquisition Transaction, including the material terms and conditions thereof and the identity of the person or group making any such Acquisition Proposal, request or inquiry. Fusion-io is obligated to keep Parent promptly and reasonably informed of the status, including all material amendments or proposed amendments, of any Acquisition Proposal, request or inquiry. Fusion-io must also notify Parent at least 24 hours before any meeting of the Fusion-io Board at which the Fusion-io Board is reasonably expected to consider an Acquisition Proposal or Acquisition Transaction, an inquiry relating to a potential Acquisition Proposal or Acquisition Transaction, or a request to provide non-public information to any Person in relation to an Acquisition Proposal or Acquisition Transaction. Neither the Fusion-io Board nor any committee thereof shall (i) fail to make, withhold, withdraw, amend, qualify or modify, or propose to refuse to make, withhold, withdraw, amend, qualify or modify, the Fusion-io Board Recommendation, (ii) approve, endorse or recommend an Acquisition Proposal or Acquisition Transaction, (iii) fail to include the Fusion-io Board Recommendation in the Schedule 14D-9, or (iv) resolve, agree or publicly propose to take any of the foregoing actions (any action described in the preceding clauses (i), (ii), (iii) or this clause (iv) being referred to in this Offer to Purchase as a "Fusion-io Board Recommendation Change"). However, neither a "stop, look and listen" communication by the Fusion-io Board pursuant to and in compliance with Rule 14d-9(f) of the Exchange Act that also includes an express reaffirmation of the Fusion-io Board Recommendation, nor the approval or delivery by Fusion-io of either a Subsequent Determination Notice (as defined below) or an Intervening Event Notice (as defined below), is considered a Fusion-io Board Recommendation Change. The Fusion-io Board may effect a Fusion-io Board Recommendation Change with respect to any sale Acquisition Proposal at any time prior to the Acceptance Time, if the Fusion-io Board has received a bona fide, written Acquisition Proposal that constitutes a Superior Proposal that has not been withdrawn and: • neither Fusion-io nor any of its subsidiaries has breached or violated in any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions material respect its obligations described in this Section 5.2 shall not apply (i) 11—"The Merger Agreement; Other Agreements—Merger Agreement—Acquisition Proposals," with respect to such Acquisition Proposal or any discussions person making such Acquisition Proposal, • the Fusion-io Board has determined in good faith (after consultation with outside legal counsel and after considering any counter-offer or negotiations proposal made by Parent), that, in light of the foregoing Superior Proposal, the failure by the Fusion-io Board to effect a Fusion-io Board Recommendation Change would reasonably be expected to constitute a breach of its fiduciary duties to Fusion-io stockholders under Delaware Law; • prior to effecting such Fusion-io Board Recommendation Change, the Fusion-io Board has given Parent at least four business days prior written notice that Fusion-io intends to take such action (a "Subsequent Determination Notice,"), which notice attaches such Superior Proposal, identities the person making such Superior Proposal, describes the terms and conditions of such Superior Proposal in reasonable detail, and provides Parent with respect the opportunity to meet with the Fusion-io Board and its outside legal counsel to discuss a modification of the terms and conditions of the Merger Agreement; and • Parent has not made, within four business days after its receipt of Fusion-io's Subsequent Determination Notice, an irrevocable counter-offer or proposal capable of being accepted by Fusion-io that the Fusion-io Board has determined in good faith (after consultation with a financial advisor of nationally recognized standing and its outside legal counsel) is at least as favorable to Fusion-io's stockholders as such Superior Proposal; Parent and Fusion-io have agreed that every subsequent material revision or material modification to any such Superior Proposal shall require a new Subsequent Determination Notice and a new two business day "matching" period. Fusion-io is obligated to keep confidential any such counter-offers or proposals made by Parent to revise the terms of the Merger Agreement, except to the transfer extent required to be disclosed in any SEC Reports or pursuant to applicable law or stock exchange listing requirement. In addition, the Fusion-io Board may effect a Fusion-io Board Recommendation Change at any time prior to the Acceptance Time in response to an Intervening Event (as defined below) if: • an Intervening Event has occurred; • the Fusion-io Board has determined in good faith (after consultation with outside legal counsel) that, in light of Shares permitted such Intervening Event, the failure by Section 2.3the Fusion-io Board to effect a Fusion-io Board Recommendation Change would reasonably be expected to constitute a breach of its fiduciary duties to Fusion-io's stockholders under Delaware Law; • prior to effecting such Fusion-io Board Recommendation Change, or the Fusion-io Board has given Parent at least three business days prior written notice thereof (iian "Intervening Event Notice") specifying the material facts underlying the Fusion-io Board's determination that an Intervening Event has occurred and the rationale and basis for such Fusion-io Board Recommendation Change and giving Parent the opportunity to meet with respect Fusion-io's outside legal counsel with the purpose and intent of enabling Parent and Fusion-io to discuss in good faith a modification of the terms and conditions of the Merger Agreement so as to obviate the need to effect a Fusion-io Board Recommendation Change on the basis of such Intervening Event; and • following the expiration of such three Business Day period, the Fusion-io Board has determined in good faith (after consultation with outside legal counsel) and after giving consideration to any discussions between offer or proposal from Parent, that, in light of such Intervening Event, the Stockholder, on failure by the one hand, and any Affiliate or Representative Fusion-io Board to effect a Fusion-io Board Recommendation Change would reasonably be expected to constitute a breach of Stockholder on the other hand.its fiduciary duties to Fusion-io's stockholders under Delaware law. For purposes of this Offer to Purchase:
Appears in 1 contract
Sources: Offer to Purchase (Sandisk Corp)
Acquisition Proposals. (a) Stockholder agrees that From the date of this Agreement until the Closing Date or, if earlier, the termination of this Agreement, neither it the Acquiror nor any of its controlled Affiliates (other than the Company or its Subsidiaries) shallAcquiror Principal Shareholder will, and shall not neither the Acquiror nor the Acquiror Principal Shareholder will authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative any representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged Acquiror or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) Acquiror Principal Shareholder to, directly or indirectly, : (i) solicit, initiate, knowingly encourage, solicit, assist, induce or facilitate the making, submission or announcement of any Acquisition Inquiry Competing Transaction Proposal from any Person (other than Acquiree or Acquisition the Acquiree Members, a “Third Party”) or take any action that could reasonably be expected to lead to a Competing Transaction Proposal; , (ii) furnish or otherwise provide access to any information regarding any Acquired Company the Acquiror to any Person Third Party in connection with or in response to any Acquisition Inquiry a Competing Transaction Proposal or Acquisition Proposal; an inquiry or indication of interest, (iii) engage in or continue any discussions or negotiations with any Person Third Party with respect to any Acquisition Inquiry or Acquisition Competing Transaction Proposal; or , (iv) otherwise facilitate approve, endorse or recommend any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Competing Transaction Proposal or (v) enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement intent or other similar document or any Contract contemplating or otherwise relating to any Acquisition Inquiry or Acquisition Competing Transaction Proposal.
(b) Upon Concurrently with the execution hereofof this Agreement, Stockholder Acquiror and the Acquiror Principal Shareholder shall (i) immediately cease and cause to be terminated all any existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect Person that relate to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or Competing Transaction Proposal; (ii) as soon as practicable request each Person that has executed, within twelve (12) months prior to the date of this Agreement, a confidentiality agreement in connection with respect its consideration of a possible Competing Transaction Proposal to return or destroy all confidential information relating to the Acquiror heretofore furnished to such Person by or on behalf of the Acquiror Principal Shareholder or the Acquiror, subject to whatever rights, if any, that such Person has to retain any discussions such information or avoid any demand for its return or destruction pursuant to the terms of the confidentiality agreement between such Person and the StockholderAcquiror Principal Shareholder or the Acquiror; and (iii) cause any physical or virtual data room containing any such information to no longer be accessible to or by any Person other than Acquiree, on the one hand, Acquiree Members and any Affiliate or Representative of Stockholder on the other handtheir respective representatives.
Appears in 1 contract
Acquisition Proposals. (a) Stockholder agrees that neither it nor any of its controlled Affiliates (other than the The Company or its Subsidiaries) shall, and shall not authorize or permit cause its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company Subsidiaries and not as an officer, director or employee of the Company) their respective directors and officers to, directly or indirectly, (i) initiate, encourage, solicit, assist, induce or facilitate the making, submission or announcement of any Acquisition Inquiry or Acquisition Proposal; (ii) furnish or otherwise provide access to any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition Proposal.
(b) Upon the execution hereof, Stockholder shall immediately cease and cause to be terminated all existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging direct their other respective Representatives involved in the Transactions to, promptly cease any future solicitations, discussions or and negotiations between Stockholder and with any Person (other than Parent and its AffiliatesParent’s Representatives) with respect to any sale of Acquisition Proposal or potential Acquisition Proposal and promptly terminate access granted to any Shares held by Stockholder Person or its Representatives (other than Parent and Parent’s Representatives) to state any non-public information of the Company or its Subsidiaries within the control of the Company or its Subsidiaries or electronic data room maintained by the Company or its Subsidiaries with respect to the Transactions or an Acquisition Proposal and request that Stockholder is currently all non-public information previously provided be returned or destroyed in accordance with the applicable confidentiality agreement. Subject to Section 6.03(b), during the period commencing with the execution and delivery of this Agreement and continuing until the earlier of (x) the valid termination of this Agreement or (y) the Effective Time, neither the Company nor any of its Subsidiaries shall, and the Company shall instruct its and its Subsidiaries’ Representatives involved in the Transactions not permitted to, directly or indirectly: (i) initiate, solicit, knowingly induce, knowingly facilitate, or knowingly encourage the submission of any Acquisition Proposal or any inquiries that could reasonably be expected to engage result in such an Acquisition Proposal (including by way of furnishing non-public information), (ii) enter into or participate in any discussions or negotiations)negotiations with any Third Party for the purpose of facilitating, inducing or encouraging an Acquisition Proposal, (iii) provide any material non-public information relating to the Company or any of its Subsidiaries to any Person (other than Parent, Merger Subsidiary, or any designees of Parent or Merger Subsidiary) for the purpose of facilitating, inducing or encouraging an Acquisition Proposal or (iv) enter into any agreement with respect to an Acquisition Proposal. At any time prior to obtaining the Company Stockholder Approval, if the Company or any of the Representatives of the Company or its Subsidiaries has received a written Acquisition Proposal from any Third Party that did not result from a breach in any material respect of this Section 6.03, the Company and its Representatives may contact the Third Party making such Acquisition Proposal to clarify the terms and conditions of such Acquisition Proposal or inform such Person of the existence of the provisions of this Section 6.03.
(b) Notwithstanding anything to the contrary contained in this Agreement, if at any time following the execution and delivery of this Agreement and prior to the time at which the Company Stockholder Approval is obtained, (i) if the Company or its Representatives has received an Acquisition Proposal that did not result from a breach in any material respect of this Section 6.03 and (ii) the board of directors of the Company determines in good faith, after consultation with its financial advisor and outside legal counsel, that such Acquisition Proposal constitutes or is reasonably likely to lead to or result in a Superior Proposal and the failure to take the following actions would reasonably be expected to be inconsistent with its fiduciary duties pursuant to Delaware Law, then the Company may (A) furnish information with respect to the Company and its Subsidiaries to the Person making such Acquisition Proposal and its Representatives and (B) engage or participate in discussions or negotiations with such Person and its Representatives regarding such Acquisition Proposal; provided, that (1) the Company shall not, and shall instruct its Representatives not to, disclose any non-public information to such Person unless the Company has entered into, or first enters into, a confidentiality agreement with such Person with terms governing confidentiality and related provisions that are no less favorable to the Company in any material respect than those contained in the Confidentiality Agreement; provided, that such confidentiality agreement may contain a less restrictive or no standstill restriction, in which case the Confidentiality Agreement shall be deemed to be amended to contain only such less restrictive provision, or to omit such provision, as applicable, and (2) the Company shall provide or make available to Parent promptly (and in any event within twenty-four (24) hours) any non-public information concerning the Company or its Subsidiaries provided or made available to such other Person that was not previously provided or made available to Parent and Merger Subsidiary.
(c) Notwithstanding From and after the foregoingdate of this Agreement, and subject to any confidentiality restrictions in effect on the date of this Agreement, the restrictions Company shall promptly (within twenty-four (24) hours of any Acquisition Proposal received in writing and within forty-eight (48) hours of any Acquisition Proposal received verbally) notify Parent of the receipt by the Company of any Acquisition Proposal and shall, with any such written notice to Parent, include copies of any written materials relating to such Acquisition Proposal (including materials provided by the Company in response thereto) and indicate the identity of the Person making such Acquisition Proposal and the material terms and conditions of such Acquisition Proposal and thereafter shall promptly (within twenty-four (24) hours) keep Parent reasonably informed on a reasonably current basis of any material change to the terms of any such Acquisition Proposal, including by providing a copy of all additional material written documentation relating thereto. The Company shall not, and shall cause its Subsidiaries not to, enter into any agreement with any Person subsequent to the date of this Agreement which prohibits the Company from providing any information to Parent in accordance with this Section 5.2 6.03.
(d) The board of directors of the Company and each committee thereof shall not apply not, subject to the terms and conditions of this Agreement, (i) cause or permit the Company or any of its Subsidiaries to enter into any acquisition agreement, merger agreement, or similar definitive agreement (other than a confidentiality agreement referred to and entered into in compliance with respect Section 6.03(b)) relating to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, Acquisition Proposal (an “Alternative Acquisition Agreement”) or (ii) make an Adverse Recommendation Change; provided that, for the avoidance of doubt, (x) any determination or action by the board of directors of the Company to the extent permitted by Section 6.03(b) or Section 6.03(e) shall not be, and shall not be deemed to be, in and of itself, a breach or violation of this Section 6.03(d), or, in the case of Section 6.03(e), unless an Adverse Recommendation Change has occurred, give Parent a right to terminate this Agreement pursuant to Section 10.01 and (y) none of (1) the private determination by the board of directors of the Company that an Acquisition Proposal constitutes a Superior Proposal, (2) the disclosure by the Company of such determination, so long as such disclosure also states that no Adverse Recommendation Change or termination of this Agreement shall occur until the expiration of the applicable Match Period contemplated by Section 6.03(e) has occurred and promptly after the end of such Match Period the Company shall either (x) issue a public press release stating that the prior Acquisition Proposal no longer constitutes a Superior Proposal or (y) make an Adverse Recommendation Change or terminate this Agreement pursuant to Section 10.01 or (3) the delivery by the Company to Parent, Merger Subsidiary or their respective Representatives of any notices required by this Section 6.03, shall constitute an Adverse Recommendation Change.
(e) Notwithstanding anything to the contrary contained in this Agreement, at any time prior to receipt of the Company Stockholder Approval:
(i) the Company may (1) terminate this Agreement to enter into an Alternative Acquisition Agreement or (2) make an Adverse Recommendation Change if (A) the Company receives an Acquisition Proposal that did not result from a breach in any material respect of this Section 6.03 and the board of directors of the Company determines in good faith, after consultation with its financial advisors and outside legal counsel that (x) such Acquisition Proposal constitutes a Superior Proposal and (y) the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under Delaware Law; (B) the Company provides Parent four (4) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to such Superior Proposal that is specified in Section 6.03(c) (it being understood that each time any discussions between material revision or amendment to the Stockholderterms of the Acquisition Proposal determined to be a Superior Proposal is made, on including any revision or amendment to the one handfinancial terms, written notice to Parent shall be required and the four (4)-Business Day period shall be extended for an additional two (2) Business Days after notification of such change in accordance with Section 6.03(c) and this Section 6.03(e) to Parent); (C) during the applicable period described in clause (B) (the “Takeover Notice Period”), the Company considers and discusses with Parent in good faith any Affiliate adjustments or Representative modifications to the terms of Stockholder on this Agreement proposed by Parent; and (D) at the other handend of the Takeover Notice Period, the board of directors of the Company again makes the determination in good faith, after consultation with its outside legal counsel and financial advisors (and after taking into account any adjustments or modifications proposed by Parent during the Takeover Notice Period), that the Acquisition Proposal continues to be a Superior Proposal; provided, that it is understood and agreed that the actions of the board of directors of the Company in making such determination, providing such notice and notice shall not in itself constitute an Adverse Recommendation Change or a basis for Parent to terminate this Agreement;
(ii) the board of directors of the Company may make an Adverse Recommendation Change pursuant to clause (a) of the definition thereof in the absence of an Acquisition Proposal in response to an Intervening Event if (A) the Company provides Parent four (4) Business Days’ prior written notice of its intention to take such action, which notice shall identify and include all material information with respect to such Intervening Event and a description of the board of directors of the Company’s rationale for such action, (B) during such four (4)-Business Day period described in clause (A) (together with the Takeover Notice Period, the “Match Period”), the Company considers and discusses in good faith with Parent any adjustments or modifications to the terms of this Agreement proposed by Parent and (C) at the end of the four (4)-Business Day period described in clause (A), the board of directors of the Company determines in good faith after consultation with its financial advisors and outside legal counsel (after taking into account any adjustments or modifications to the terms of this Agreement proposed by Parent during the period described in clause (A)) that the failure to take such action would reasonably be expected to be inconsistent with its fiduciary duties under Delaware Law.
(f) Nothing contained in this Agreement shall prohibit the board of directors of the Company from (1) complying with its disclosure obligations under Law or applicable rules of the NYSE, including taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, (2) making any “stop-look-and-listen” communication to stockholders of the Company or (3) making any public statement if the board of directors of the Company determines that the failure to make such statement would reasonably be expected to be inconsistent with Law or its fiduciary duties; provided, that any such disclosure that constitutes or contains an Adverse Recommendation Change shall be subject to the provisions of Section 6.03(d), it being understood that a disclosure that constitutes only a “stop-look-and-listen” statement or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not be deemed to be an Adverse Recommendation Change if it reaffirms the Company Board Recommendation. For the avoidance of doubt, a public statement that describes the Company’s receipt of an Acquisition Proposal, that the board of directors of the Company is considering the Acquisition Proposal, that no position has been taken by the board of directors of the Company as to the advisability or desirability of such Acquisition Proposal and the operation of this Agreement with respect thereto will not be deemed an Adverse Recommendation Change.
Appears in 1 contract
Sources: Merger Agreement (CVS HEALTH Corp)
Acquisition Proposals. (a) Stockholder agrees that neither it nor any of its controlled Affiliates Until this Agreement has been terminated in accordance with Section 7.1 (other than and the payments, if any, required to be made in connection with such termination pursuant to Section 7.2(b) have been made), Company or its Subsidiaries) shallshall not, and shall not authorize or permit any of its Representatives Affiliates to, and shall cause its and its Affiliates’ officers, directors, employees, consultants, representatives and other agents, including investment bankers, attorneys, accountants and other advisors (it being understood thatcollectively, for purposes hereofthe “Representatives”), a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, (i1) initiate, encourageencourage (including by way of furnishing or disclosing information), solicit, assistinitiate, induce make or facilitate the makingmaking of, submission or announcement take any other action to facilitate any inquiries or the making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Inquiry or Acquisition Proposal; Proposal (ii) furnish or otherwise provide access to including by taking any information regarding any Acquired Company to any Person in connection with or in response action after the date of this Agreement that would make Section 203 of the DGCL inapplicable to any Acquisition Inquiry or Acquisition Proposal; ), (iii2) engage participate in any way in discussions or negotiations with with, or furnish or disclose any Person with respect to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principleinformation to, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition Proposal.
(b) Upon the execution hereof, Stockholder shall immediately cease and cause to be terminated all existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and or any of its AffiliatesSubsidiaries) in connection with any Acquisition Proposal, (3) release or permit the release of any Person from, or waive or permit the waiver of any provisions of, or otherwise fail to exercise its rights under, any confidentiality, standstill or similar agreement to which Company is a party or under which Company has any rights with respect to the divestiture of the voting securities or any sale material portion of the assets of Company (except for any Shares held by Stockholder such agreement with Parent or any of its Subsidiaries), (4) effect a Change in Company Recommendation, (5) approve or recommend, or propose to approve or recommend, any Acquisition Proposal or (6) enter into any agreement, letter of intent, agreement-in-principle, acquisition agreement or other than instrument contemplating or otherwise relating to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) any Acquisition Proposal. Notwithstanding the foregoing, at any time prior to the restrictions in this Section 5.2 shall not apply time that the Company Requisite Stockholder Vote is obtained, Company and the Representatives may:
(i) participate in discussions or negotiations with, or furnish or disclose nonpublic information to, any Person in response to an unsolicited, bona fide and written Acquisition Proposal that is submitted to Company by such Person after the date of this Agreement and prior to the time that the Company Requisite Stockholder Vote is obtained if and so long as (A) none of Company, any of its Affiliates or any of the Representatives has violated any of the provisions of this Section 5.5, (B) a majority of the members of the Board of Directors of Company determines in good faith, after consultation with a nationally recognized financial advisor, that (I) such Person is reasonably capable of consummating a Superior Proposal taking into account the legal, financial, regulatory and other aspects of such Acquisition Proposal and (II) such Acquisition Proposal constitutes or is reasonably likely to constitute a Superior Proposal, (C) a majority of the members of the Board of Directors of Company determines in good faith, after consultation with its outside legal counsel, that failing to take such action would constitute a breach of its fiduciary duties to Company’s stockholders under applicable Law, (D) at least three Business Days prior to participating in discussions or negotiations with, or furnishing or disclosing any nonpublic information to, such Person, Company provides Parent with written notice of the identity of such Person and of Company’s intention to participate in discussions or negotiations with, or to furnish or disclose nonpublic information to, such Person, (E) prior to participating in discussions or negotiations with, or furnishing or disclosing any nonpublic information to, such Person, Company receives from such Person an executed confidentiality and standstill agreement containing terms no less restrictive upon such Person, in any respect, than the terms applicable to Parent under the Confidentiality Agreement, which confidentiality and standstill agreement shall not provide such Person with any exclusive right to negotiate with Company or have the effect of prohibiting Company from satisfying its obligations under this Agreement, and (F) contemporaneously with furnishing or disclosing any nonpublic information to such Person, Company furnishes such information to Parent (to the extent such information has not been previously delivered or made available by Company to Parent); and
(ii) approve or recommend, or enter into (and, in connection therewith, effect a Change in Company Recommendation), a definitive agreement with respect to an unsolicited, bona fide and written Acquisition Proposal that is submitted to Company after the date of this Agreement and prior to the time that the Company Requisite Stockholder Vote is obtained if and so long as (A) none of Company, any of its Affiliates or any of the Representatives has violated any of the provisions of this Section 5.5, (B) Company provides Parent with written notice indicating that Company, acting in good faith, believes that the Acquisition Proposal is reasonably likely to constitute a Superior Proposal and, therefore, plans to conduct a meeting of the Board of Directors of Company for the purpose of considering whether the Acquisition Proposal constitutes a Superior Proposal, which notice shall be delivered to Parent at least three Business Days prior to the date of such meeting of the Board of Directors of Company, (C) during the three Business Day period after Company provides Parent with the written notice described in clause (B) above, Company shall cause its financial and legal advisors to negotiate in good faith with Parent in an effort to make such adjustments to the terms and conditions of this Agreement such that the Acquisition Proposal would not constitute a Superior Proposal, (D) notwithstanding the negotiations and adjustments pursuant to clause (C) above but after taking into account the results of such negotiations and adjustments, the Board of Directors of Company makes the determination necessary for such Acquisition Proposal to constitute a Superior Proposal, (E) notwithstanding the negotiations and adjustments pursuant to clause (C) above but after taking into account the results of such negotiations and adjustments, a majority of the members of the Board of Directors of Company determines in good faith, after consultation with its outside legal counsel, that failing to approve or recommend or enter into a definitive agreement with respect to such Acquisition Proposal would constitute a breach of its fiduciary duties to Company’s stockholders under applicable Law and (F) not later than the earlier of the approval or recommendation of, or the execution and delivery of a definitive agreement with respect to, any such Superior Proposal, Company (I) terminates this Agreement pursuant to Section 7.1(h), (II) makes the payment required to be made pursuant to Section 7.2(b) and (III) delivers to Parent a written certification duly executed from each other party to such Superior Proposal pursuant to which each such other party certifies that it is aware of the amount payable under Section 7.2(b) and that it waives any right that it may have to contest the amount so payable.
(b) In addition to the obligations of Company set forth in Section 5.5(a), within 24 hours of the receipt thereof, Company shall provide Parent with written notice of (i) any request for information, any Acquisition Proposal or any inquiry, proposal, discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3any Acquisition Proposal, or (ii) the material terms and conditions of such request, Acquisition Proposal, inquiry, proposal, discussions or negotiations and (iii) the identity of the Person making any such Acquisition Proposal or such request, inquiry or proposal or with whom such discussions or negotiations are taking place, and Company shall promptly provide Parent with copies of any written materials received by Company in connection with any of the foregoing. Company shall keep Parent fully informed of the status and general progress (including amendments or proposed amendments to any material terms) of any such request or Acquisition Proposal and keep Parent fully informed as to the details of any information requested of or provided by Company and as to the details of all discussions or negotiations. Without limiting Company’s obligations under Section 5.5(a), Company shall provide Parent with notice at least three Business Days prior to (or such lesser notice as is provided to the members of the Board of Directors of Company) any meeting of the Board of Directors of Company at which the Board of Directors is reasonably expected to discuss or consider any Acquisition Proposal.
(c) Company shall, and shall cause its Affiliates and the Representatives to, immediately cease all discussions or negotiations, if any, with any Person other than Parent and its Subsidiaries that may be ongoing as of the date of this Agreement with respect to any discussions between Acquisition Proposal. Company shall immediately request each Person who has heretofore executed a confidentiality agreement in connection with its consideration of acquiring Company or any portion thereof (including any of its Subsidiaries) to return all nonpublic information heretofore furnished to such Person by or on behalf of Company.
(d) Nothing contained in this Section 5.5 shall prohibit Company from complying with Rule 14e-2 and Rule 14d-9 promulgated under the StockholderExchange Act with respect to an Acquisition Proposal, on provided that such Rules shall in no way eliminate or modify the one handeffect that any action pursuant to such Rules would otherwise have under this Agreement.
(e) Any violation of this Section 5.5 by Company’s Affiliates or the Representatives shall be deemed to be a breach of this Agreement by Company, and any whether or not such Affiliate or Representative is authorized to act and whether or not such Affiliate or Representative is purporting to act on behalf of Stockholder on the other handCompany.
Appears in 1 contract
Acquisition Proposals. (a) Stockholder 5.7.1 Subject to Sections 5.7.2 and 5.7.4, Buyer agrees that neither it shall not, nor shall it permit or authorize any Buyer Subsidiaries or any of its controlled Affiliates (other than the Company or its Subsidiaries) shalltheir directors or officers to, and shall not authorize or permit any other Buyer Representative to, and shall use its Representatives (it being understood that, for purposes hereof, a reasonable best efforts to cause each Buyer Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, take any action to (iA) initiate, encourage, solicit, assist, induce initiate or facilitate the making, submission or announcement of encourage any Acquisition Inquiry or Buyer Acquisition Proposal; , (iiB) furnish or otherwise provide access to participate in any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage way in discussions or negotiations with, or furnish any non-public information to, any person with respect to a Buyer Acquisition Proposal other than the transactions contemplated hereby, (C) withhold, withdraw (or not continue to make), qualify or modify (or publicly propose or resolve to withhold, withdraw (or not continue to make), qualify or modify) the Buyer Recommendation in a manner adverse to Seller, (D) other than the transactions contemplated hereby, approve, recommend or take any Person public position (including any position communicated to Buyer’s stockholders or any other person, but not including communications made in internal discussions among Buyer’s management and its advisors) other than “against” any Buyer Acquisition Proposal, or (E) enter into any agreement or letter of intent with respect to any Acquisition Inquiry or Buyer Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition Proposal.
(b) Upon the execution hereof, Stockholder shall immediately cease . Buyer has previously ceased and cause caused to be terminated all existing activities, discussions or any negotiations with any parties person (other than Parent the Company and its AffiliatesSeller) conducted heretofore theretofore by Buyer, the Buyer Subsidiaries or any Buyer Representative with respect to any Buyer Acquisition Inquiry or Acquisition Proposal or sale of Shares held by StockholderProposal, and shall refrain from engaging as promptly as reasonably practicable request that the other parties thereto, as promptly as reasonably practicable, return or destroy, subject to the terms of any agreement with such parties, any confidential information previously furnished by Buyer, the Buyer Subsidiaries or the Buyer Representatives thereunder.
5.7.2 Notwithstanding anything to the contrary contained in any future discussions Section 5.7.1, Buyer or negotiations between Stockholder the Buyer Board, as applicable, shall be permitted to:
5.7.2.1 take and any Person (other than Parent and its Affiliates) disclose to Buyer’s stockholders a position with respect to any sale tender or exchange offer by a third party or amend or withdraw such a position complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act in a manner consistent with its other obligations under this Section 5.7; provided that this Section 5.7.2.1 shall not be deemed to permit the Buyer Board to make a Buyer Adverse Recommendation Change or take any actions referred to in Section 5.7.4, except to the extent permitted by Section 5.7.4; or
5.7.2.2 at any time prior to obtaining the Buyer Stockholder Approval, negotiate or otherwise engage in discussions with, and furnish nonpublic information to, any person in response to an unsolicited written Buyer Acquisition Proposal by such person, if (A) the Buyer Board determines in good faith after consultation with and advice from its financial advisor, that such proposal is reasonably likely to result in a Buyer Superior Proposal, (B) such person executes a confidentiality agreement no less favorable to Buyer than the letter agreement, dated as of any Shares held February 19, 2014, entered into by Stockholder Seller and Buyer (other than to state an “Acceptable Confidentiality Agreement”) and (C) the Buyer Board determines in good faith after consultation with Buyer’s outside legal counsel that Stockholder is currently not permitted the failure to engage in such negotiation or discussions or negotiations)provide such information would violate Buyer Board’s fiduciary duties under applicable Law.
5.7.3 Buyer shall (cA) notify Seller orally and in writing of the receipt of any Buyer Acquisition Proposal or any Buyer Acquisition Proposal (including the material terms thereof and the identity of the person making it) as promptly as reasonably practicable (but in no case later than 48 hours after its receipt), (B) as promptly as reasonably practicable (but in no case later than 48 hours after its receipt) inform Seller regarding any material changes to the status, terms and details (including amendments or proposed amendments) of such Buyer Acquisition Proposal, (C) deliver to Seller concurrently with the delivery to such person or its representatives a copy of any non-public information as permitted by Section 5.7.2 which has not previously been delivered by Buyer to Seller and (D) keep Seller promptly advised of all changes to the material terms of any Buyer Acquisition Proposal. Buyer shall (A) notify Seller in writing of the occurrence of any Intervening Event (including a description thereof) as promptly as reasonably practicable (but in no case later than 48 hours after having knowledge that the relevant event or change in circumstances constitutes an Intervening Event) and (B) as promptly as reasonably practicable (but in no case later than 48 hours after having knowledge thereof) inform Seller regarding any material changes to the status and details of such Intervening Event.
5.7.4 Except as otherwise specifically permitted by this Section 5.7.4, neither the Buyer Board nor any committee thereof shall (A) withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to Seller, the Buyer Recommendation, or (B) approve, recommend or take a public position with respect to, or publicly propose to approve, recommend or take a public position with respect to, any Buyer Acquisition Proposal. Notwithstanding the foregoingforegoing and provided that Buyer has not breached this Section 5.7, prior to the Buyer Stockholder Approval, the restrictions in this Section 5.2 Buyer Board shall not apply be permitted to make a Buyer Adverse Recommendation Change, but only if (i) (y) Buyer has received a proposal which the Buyer Board determines in good faith after consultation with respect its financial advisor constitutes a Buyer Superior Proposal and (z) the Buyer Board determines in good faith after consultation with Buyer’s outside legal counsel that the failure to any discussions or negotiations with respect to take such action would violate the transfer of Shares permitted by Section 2.3Buyer Board’s fiduciary duties under applicable Law (this clause (i), a “Superior Proposal BARC”); or (ii) an event has occurred or is occurring which the Buyer Board determines in good faith (y) after consultation with and advice from its financial advisor constitutes an Intervening Event and (z) after consultation with Buyer’s outside legal counsel that the failure to take such action would violate the Buyer Board’s fiduciary duties under applicable Law (this clause (ii), an “Intervening Event BARC”). Notwithstanding anything in this Section 5.7 to the contrary, Buyer shall not exercise its right to make a Buyer Adverse Recommendation Change under this Section 5.7.4 unless (a) Buyer shall have delivered to Seller a prior written notice (a “Change Notice”), not less than five (5) Business Days prior to the time such action is intended to be taken, advising Seller that the Buyer Board intends to make a Buyer Adverse Recommendation Change, specifying in reasonable detail (A) the material terms of the Buyer Superior Proposal or (B) a description of the Intervening Event, as applicable, (b) Buyer negotiates in good faith with Seller to make such adjustments to the terms and conditions of this Agreement or the transactions contemplated hereby as would enable the Buyer Board to determine that failing to make a Buyer Adverse Recommendation Change would not violate the Buyer Board’s fiduciary duties under applicable Law, and (c) on or before the fifth (5th) Business Day following Seller’s receipt of the Change Notice, and taking into account in good faith any revised proposal made by Seller since receipt of the Change Notice, such Buyer Superior Proposal remains a Buyer Superior Proposal, or such Intervening Event remains in effect, as applicable, and the Buyer Board has again made the determinations referred to above; provided, however, that in the event that any such Buyer Acquisition Proposal is thereafter modified by the person making such Buyer Acquisition Proposal and the Buyer Board determines to make a Buyer Adverse Recommendation Change due to such Buyer Acquisition Proposal as permitted by this Section 5.7.4, Buyer shall again comply with clauses (a) and (b) of this paragraph except that the five (5) Business Day period shall be reduced to three (3) Business Days. Concurrently with making a Buyer Superior Proposal BARC, Buyer may terminate this Agreement in accordance with Section 7.1.6 and in connection therewith enter into an agreement with respect to such Buyer Superior Proposal.
5.7.5 Notwithstanding anything to the contrary contained in the letter agreement, dated as of February 19, 2014, entered into by Seller and Buyer, upon any discussions between Buyer Adverse Recommendation Change, the Stockholderrestrictions and obligations set forth in (A) Section 7 thereof (Standstill), on (B) the one hand, second and any Affiliate third sentences of Section 2(b) thereof (Agreements with Other Persons) and (C) the proviso in Section 2(d) thereof (Sources of Financing) shall thereafter be inoperative and of no force or Representative of Stockholder on the other handeffect.
Appears in 1 contract
Acquisition Proposals. (a) Stockholder agrees that neither it nor any From the date hereof through the earlier of its controlled Affiliates (other than the Company or its Subsidiaries) shallClosing Date and the date of termination of this Agreement pursuant to Article IX, as applicable, Seller shall not, and shall cause its Subsidiaries and its and their respective Representatives not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectlyindirectly (a) solicit, (i) initiate, knowingly encourage, solicitfacilitate or accept any inquiries, assistproposals, induce offers or facilitate the making, submission other indications of interest by or announcement of any Acquisition Inquiry or Acquisition Proposal; (ii) furnish or otherwise provide access to any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with from any Person with respect to to: (i) any Acquisition Inquiry acquisition, purchase or other transaction involving the direct or indirect sale or transfer of all or any substantial part of the Business or the Allocated Assets (excluding sales of Investment Assets and the entry into the consummation of, or the making of payments under, any hedging transaction) or the equity interests of the Acquired Companies, or (ii) any merger, consolidation, business combination, reorganization, dissolution, recapitalization or similar transaction involving the Acquired Companies (each, an “Acquisition Proposal; ”), but excluding, in each case, this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby, or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition Proposal.
(b) Upon the execution hereof, Stockholder shall immediately cease and cause to be terminated all existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging participate in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3to, or (ii) with respect furnish or confirm any information to any discussions between Person in connection with, an Acquisition Proposal. In the Stockholderevent that Seller, on the one hand, and an Acquired Company or any Affiliate of Seller or Representative the Acquired Companies receives an Acquisition Proposal, the Person receiving such Acquisition Proposal shall promptly, but in no event later than forty-eight (48) hours thereafter, notify Buyer Parent in writing of Stockholder on such proposal and provide a copy thereof (if in written or electronic form) or, if in oral form, a written summary of the terms and conditions thereof, including the names of the interested parties. For the avoidance of doubt, any inquiries, proposals, offers or indications of interest or other handagreements relating to any Permitted Transaction shall not be considered an Acquisition Proposal hereunder.
Appears in 1 contract
Sources: Master Transaction Agreement (Voya Financial, Inc.)
Acquisition Proposals. (a) Stockholder agrees that neither Bair▇ ▇▇▇ital Development shall not, nor shall it nor authorize any of its controlled Affiliates (other than the Company or its Subsidiaries) shall, and shall not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of, or any investment banker, attorney or other advisor or representative of the Company) Bair▇ ▇▇▇ital Development to, directly or indirectly, indirectly (i) initiate, encourage, solicit, assist, induce initiate or facilitate encourage the making, submission or announcement of any Acquisition Inquiry Proposal or Acquisition Proposal; (ii) furnish or otherwise provide access to any information regarding any Acquired Company to any Person participate in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition Proposal.
(b) Upon the execution hereof, Stockholder shall immediately cease and cause to be terminated all existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations regarding, or furnish to any Person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal, and Bair▇ ▇▇▇ital Development shall promptly terminate any such discussions with any Person that has expressed or expresses an interest in acquiring Bair▇ ▇▇▇ital Development or negotiations pending at the date of this Agreement provided, however, Bair▇ ▇▇▇ital Development or any officer, director or employee of, or any investment banker, attorney or other adviser or representative of Bair▇ ▇▇▇ital Development may, following the receipt of an Acquisition Proposal that the Board of Directors of Bair▇ ▇▇▇ital Development determines in good faith, after consultation with outside counsel, would permit the Board of Directors to take any of the actions referred to in Section 5.10, participate in negotiations regarding such Acquisition Proposal. Bair▇ ▇▇▇ital Development shall promptly notify AIM Equity, orally and in writing, of the receipt by it after the date hereof of any Acquisition Proposal or any inquiry from a potential acquiror of Bair▇ ▇▇▇ital Development which could reasonably be expected to lead to any Acquisition Proposal, the material terms and conditions of such Acquisition Proposal or inquiry and the identity of the Person making any such Acquisition Proposal or inquiry, except to the extent Bair▇ ▇▇▇ital Development's Board of Directors concludes, after consultation with outside counsel, that the disclosure of any such information would be a breach of a duty of confidentiality imposed on Bair▇ ▇▇▇ital Development with respect to such information. Subject to the transfer foregoing, Bair▇ ▇▇▇ital Development shall keep AIM Equity informed of Shares permitted by Section 2.3, the status and details of any such Acquisition Proposal or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other handinquiry.
Appears in 1 contract
Acquisition Proposals. (a) Stockholder Yazam hereby covenants and agrees that for the period from the date hereof until the Effective Time, subject to the duties imposed by applicable law, neither it Yazam nor any of its controlled Affiliates (other than the Company or its Subsidiaries) shall, and Yazam Subsidiaries shall not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) totake, directly or indirectly, any action to initiate, assist, solicit, receive, negotiate, encourage or accept any offer or inquiry from any Person (or authorize or permit any of their respective officers, directors, employees, agents, counsel, accountants, financial advisors, consultants and other representatives (together "Representatives"))
(1) to engage in any Business Combination, (2) to reach any agreement or understanding (whether or not such agreement or understanding is absolute, revocable, contingent or conditional) for, or otherwise attempt to consummate, any Business Combination, (3) to furnish or cause to be furnished any information with respect to Yazam or any of the Yazam Subsidiaries to any Person (other than as contemplated by this Agreement) who Yazam or any such Yazam Subsidiary or Representative knows or has reason to believe is in the process of considering any Business Combination, or (4) to (i) initiatepurchase, encourageacquire, solicitsell or otherwise transfer any capital stock or other equity interest of such other Person, assist, induce or facilitate the making, submission or announcement of any Acquisition Inquiry or Acquisition Proposal; (ii) furnish purchase or otherwise provide access to any information regarding any Acquired Company to any Person in connection with acquire all or in response to any Acquisition Inquiry substantially all of the assets and properties of such other Person, or Acquisition Proposal; (iii) engage invest in discussions or negotiations with any Person with respect to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principlea joint venture, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, strategic partnership agreement, merger agreement or other similar document arrangement with such other Person. If Yazam or Contract relating any such Yazam Subsidiary or Representative receives from any Person any offer, inquiry or informational request referred to any Acquisition Inquiry above, Yazam shall promptly advise such Person, by written notice, of the terms of this section and shall promptly, orally and in writing, advise the Parent of such offer, inquiry or Acquisition Proposalrequest and deliver a copy of the foregoing notice to the Parent.
(b) Upon If at any time between the execution hereofdate hereof and the Closing Date, Stockholder shall immediately cease and cause to be terminated all existing activitiesYazam, discussions any of the Yazam Subsidiaries or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held Yazam Representatives is approached by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (concerning participation by Yazam, any of the Yazam Subsidiaries or Yazam Representatives or such other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage Person in such discussions a transaction or negotiations).
(c) Notwithstanding transactions involving the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions assets or negotiations with respect to the transfer of Shares permitted by Section 2.3businesses of, or (ii) with respect to securities issued by, Yazam or any discussions between Yazam Subsidiary, Yazam shall promptly inform the Stockholder, on Parent of the one hand, nature of such contact and any Affiliate or Representative of Stockholder on the other handparties thereto.
Appears in 1 contract
Acquisition Proposals. (a) Stockholder SL Bancorp agrees that neither it nor SL Bank nor any of its controlled Affiliates (their respective directors, officers, employees or other than the Company or its Subsidiaries) representatives shall, and that they shall use their best efforts to instruct and cause their respective representatives not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly:
(a) initiate, solicit, encourage or otherwise facilitate any inquiries or the making of any proposal or offer that constitutes, or could reasonably be expected to lead to, (i) initiateany proposal or offer with respect to a merger, encouragejoint venture, solicitpartnership, assistconsolidation, induce dissolution, liquidation, tender offer, recapitalization, reorganization, share exchange, business combination or facilitate similar transaction involving SL Bancorp or any of its Subsidiaries and (ii) any acquisition by any Person resulting in, or proposal or offer which if consummated would result in, any Person becoming the makingbeneficial owner of directly or indirectly, submission in one or announcement a series of 3266.019/439907.1 related transactions, 10% or more of the total voting power of any class of equity securities of SL Bancorp, or those of any of its Subsidiaries, or 10% or more of the consolidated total assets (including, without limitation, equity securities of its Subsidiaries) of SL Bancorp, in each case other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an “Acquisition Inquiry Proposal”);
(b) engage in, continue or otherwise participate in any discussions or negotiations concerning, or provide any non-public information or data to, any Person relating to, an Acquisition Proposal; or
(ii) furnish or otherwise provide access to any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Inquiry or Acquisition Proposal; or (ivc) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry Proposal. Notwithstanding anything in the foregoing to the contrary, nothing contained in this Agreement shall prevent SL Bancorp or the SL Bancorp Board from (i) complying with its disclosure obligations under federal or state law; (ii) providing information in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if SL Bancorp Board receives from the Person so requesting such information an executed confidentiality agreement on terms no less favorable to such Person than the Confidentiality Agreement; (iii) engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal or enter into any agreement (iv) recommending such an Acquisition Proposal to the shareholders of SL Bancorp, if and only to the extent that, in principleeach such case referred to in clause (ii), letter (iii) or (iv) above, (A) the SL Bancorp Board determines in good faith (after consultation with outside legal counsel) that failure to take such actions would reasonably be expected to be a violation of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or its fiduciary duties under applicable law and (B) the SL Bancorp Board determines in good faith (after consultation with its outside legal counsel and financial advisor) that such Acquisition Proposal, if accepted, is reasonably likely to be consummated in accordance with its terms, taking into account all legal, financial and regulatory aspects of the proposal and the Person making the proposal and would, if consummated, result in a transaction more favorable to shareholders of SL Bancorp from a financial point of view than the transactions contemplated by this Agreement. An Acquisition Proposal which is received and considered by SL Bancorp in compliance with this Section 5.05 and which meets the requirements set forth in clause (B) of the preceding sentence is herein referred to as a “Superior Proposal.
(b) Upon the execution hereof, Stockholder shall ” SL Bancorp will immediately cease and cause to be terminated all any existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry Proposals and will use its reasonable best efforts to enforce any confidentiality or similar agreement related to any Acquisition Proposals. SL Bancorp agrees that it will notify Purchaser Parties promptly, but in no event later than one Business Day, of the receipt of any Acquisition Proposal or sale and the substance thereof, including the identity of Shares held by Stockholderthe Person making the Acquisition Proposal and the terms and conditions thereof, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale will keep Purchaser Parties apprised of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such related developments, discussions or negotiations)and negotiations related thereto on a current basis.
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other hand.
Appears in 1 contract
Acquisition Proposals. (a) Stockholder agrees that neither it nor Except as contemplated by this Agreement or as specifically consented to in writing by Buyer, from the date hereof through the Closing Date, Seller shall not and shall not permit any of its controlled Affiliates (other than or any of the Company Representatives of Seller or its Subsidiaries) shall, and shall not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) toAffiliates, directly or indirectly, to intentionally solicit or initiate (i) initiateany acquisition (including by way of reinsurance not in the ordinary course of business, encouragehaving regard to the fact that the Company is in run off) of the Company or any substantial part of the business, solicitassets, assistcapital stock or other voting securities of, induce or facilitate any other equity interest in, the making, submission Company or announcement of any Acquisition Inquiry or Acquisition Proposal; (ii) furnish or otherwise provide access to any information regarding any Acquired Company to any Person in connection amalgamation, merger, business combination, consolidation with or in response to any Acquisition Inquiry or acquisition by the Company (each an “Acquisition Proposal; (iii) engage in ”), initiate any discussions or negotiations with regarding any Person with respect to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating with respect to any Acquisition Inquiry Proposal. Seller shall promptly communicate to Buyer the terms of any Acquisition Proposal which Seller or such other Person may receive. Seller warrants to Buyer that, at the date of this Agreement, neither the Seller, any of its Affiliates nor any of the Representatives of the Seller or any of its Affiliates is in discussions with any third party in relation to an Acquisition Proposal nor, during the period from 29 July 2005 up to and including the date of this Agreement, has any of them received, or been in or sought to initiate any negotiations in respect of, an Acquisition Proposal.
(b) Upon Notwithstanding the execution hereofpreceding paragraph or any other provision of this Agreement, Stockholder shall immediately cease if Seller, its Affiliates and cause the Representatives of Seller and its Affiliates have complied with Section 6.11(a) above and Seller, an Affiliate of Seller or a Representative of Seller or one of its Affiliates receives a bona fide Acquisition Proposal that (x) is a Superior Proposal or (y) Seller reasonably believes might be expected to be terminated all existing activitiesresult in a Superior Proposal, then Seller and its Affiliates and Representatives may (i) participate in discussions or negotiations regarding such Acquisition Proposal, (ii) furnish to the Person or Persons making such Acquisition Proposal with non public information relating to the Company or any parties (other than Parent and of its Affiliates, (iii) conducted heretofore comply with Rules 14d-9 and 14e-2 promulgated under the Securities Exchange Act of 1934 or otherwise make disclosure to its shareholders, (iv) enter into a definitive agreement with respect to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by StockholderSuperior Proposal, subject to Section 6.11(c) below, and (v) take any non-appealable, final action ordered to be taken by Seller by any court of competent jurisdiction, but in each case referred to in the foregoing clauses (i), (ii) and (iv), if Seller determines in good faith after consultation with its counsel that the failure to take such action would present a reasonable possibility of the Board of Directors of Seller violating its fiduciary duties under applicable law.
(c) In the event that Seller or the Company proposes to enter into a definitive agreement with respect to a Superior Proposal pursuant to Section 6.11(b)(iv), Seller shall refrain from engaging notify Buyer in writing immediately (subject to any future discussions confidentiality provisions Seller or negotiations between Stockholder the Company may owe to the Person making such Superior Proposal, provided that Seller shall use its reasonable efforts to resist any confidentiality obligations or to have them removed or waived). If, before 5:00 PM (Bermuda time) on the 5th Business Day after the date Seller’s notice is given pursuant to the immediately preceding sentence, Buyer submits to Seller an offer in writing to enter into a definitive agreement with Seller or the Company on terms at least as favorable to Seller as the terms of such Superior Proposal (a “Matching Offer”), Seller and any Person the Company shall not enter into a definitive agreement with respect to such Superior Proposal pursuant to Section 6.11(b)(iv) and shall enter into a definitive agreement with Buyer reflecting, or amend the terms of this Agreement to reflect, the terms of Buyer’s Matching Offer (other than Parent and its Affiliatesit being understood that Seller or the Company may enter into a definitive agreement pursuant to Section 6.11(b)(iv) with respect to any sale other Superior Proposal that may be received by Seller, any of its Affiliates or any Shares held by Stockholder (other than Representative of Seller or its Affiliates, subject to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions in compliance with this Section 5.2 shall 6.11(c)). If Buyer does not apply submit a Matching Offer before 5:00 PM (iBermuda time) on the 5th Business Day after the date Seller’s notice is given pursuant to the first sentence of this Section 6.11(c), Seller may terminate this Agreement pursuant to Section 8.1(e) and enter into a definitive agreement with respect to such Superior Proposal. For the avoidance of doubt, if Buyer submits a Matching Offer in accordance with this Section 6.11(c), Seller shall notify Buyer of any discussions further Superior Proposal or negotiations with respect any amendment to the transfer of Shares existing Superior Proposal, but Buyer shall not be required to make a further Matching Offer in relation to that further or amended Superior Proposal and Seller shall not be permitted by Section 2.3, to enter into a definitive agreement in connection with such further or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other handamended Superior Proposal.
Appears in 1 contract
Acquisition Proposals. (a) Stockholder Stanhome agrees that neither it nor Stanhome, the Group Subsidiaries, their respective officers and directors and any of its controlled Affiliates Qualifying Holders shall not, and Stanhome and the Group Subsidiaries shall direct and shall use their reasonable efforts to cause their respective employees, agents and representatives (other than including without limitation, any investment banker, attorney or accountant retained by Stanhome and the Company or its Group Subsidiaries) shallnot to, and shall not authorize initiate or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) tosolicit, directly or indirectly, (i) initiate, encourage, solicit, assist, induce any inquiries or facilitate the making, submission or announcement making of any Acquisition Inquiry proposal or offer with respect to a merger, consolidation, management buy-out or similar transaction involving, or any sale or purchase of all or any significant portion of the assets or equity securities of, any of the Group Subsidiaries (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal; (ii") furnish or otherwise engage in any negotiations concerning, or provide access to any confidential information regarding or data to, or have any Acquired Company to discussions with, any Person in connection with or in response to any Acquisition Inquiry or furtherance of an Acquisition Proposal; (iii) engage in discussions , or negotiations with any Person with respect to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement consummate an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating Proposal. Stanhome will and will cause the Group Subsidiaries to any Acquisition Inquiry or Acquisition Proposal.
(b) Upon the execution hereof, Stockholder shall immediately cease and cause to be terminated all existing any exiting activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect to any of the foregoing; provided, however, that notwithstanding anything contained in this Agreement shall prevent Stanhome and the Group Subsidiaries or their respective Boards of Directors, directly or through representatives or agents on behalf of such Boards of Directors, from approving an unsolicited Acquisition Inquiry or Proposal, if and only to the extent that such Acquisition Proposal would, if consummated, result in a transaction that would, in the good faith judgment of any of such Boards of Directors, result in a transaction more favorable to the stockholders of Stanhome or sale such Group Subsidiary from a financial point of Shares held view than the transactions contemplated by Stockholderthis Agreement. Stanhome will notify the Buyer promptly, and shall refrain from engaging but in any future discussions or negotiations between Stockholder and event within 48 hours, if any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations)makes an Acquisition Proposal.
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other hand.
Appears in 1 contract
Acquisition Proposals. (a) Stockholder agrees that neither it nor any of its controlled Affiliates (other than the Company or its Subsidiaries) Aquarion shall, and shall not authorize or permit instruct each of its Subsidiaries and Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Companydefined below) to, directly or indirectly, (i) initiate, encourage, solicit, assist, induce or facilitate the making, submission or announcement of any Acquisition Inquiry or Acquisition Proposal; (ii) furnish or otherwise provide access to any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in immediately cease all existing discussions or negotiations with any Person with respect to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principlenegotiations, letter of intentif any, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition Proposal.
(b) Upon the execution hereof, Stockholder shall immediately cease and cause to be terminated all existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry Proposal (as defined below). Aquarion shall not directly or Acquisition Proposal indirectly, and it shall cause its Subsidiaries, officers, directors, employees, representatives, agents or affiliates, including any investment bankers, attorneys or accountants ("Representatives") retained by Aquarion or any of its Subsidiaries or affiliates, not to, directly or indirectly, through any Person, (i) solicit, initiate, encourage or otherwise facilitate (including by way of furnishing information) any inquiries or proposals that constitute, or could reasonably be expected to lead to, any inquiry, proposal or offer (or any improvement, restatement, amendment, renewal or reiteration thereof) from any Person relating to any direct or indirect acquisition or purchase of Aquarion or any of its Subsidiaries, a merger, recapitalization, consolidation, business combination, sale of Shares held a significant portion of the assets of Aquarion and its Subsidiaries, taken as a whole, sale of 10% or more of the shares of capital stock (including by Stockholderway of a tender offer, and share exchange or exchange offer) or similar or comparable transactions involving Aquarion or any of its Subsidiaries, other than the transactions contemplated by this Agreement (any such inquiry, proposal or offer (or improvement, restatement, amendment, renewal or reiteration thereof) (other than made by Parent or an affiliate thereof) being herein referred to as an "Acquisition Proposal"), or (ii) engage in negotiations or discussions concerning, or provide any non-public information to any Person relating to, any Acquisition Proposal. Notwithstanding any other provision of this Agreement, the Board of Directors of Aquarion may, at any time prior to adoption of this Agreement by the stockholders of Aquarion, furnish information (pursuant to a customary confidentiality agreement no more favorable, in the aggregate, to the party receiving information than the Confidentiality Agreement (it being understood that Aquarion may enter into a confidentiality agreement without a standstill or with a standstill provision less favorable to Aquarion if it waives or similarly modifies the standstill provision in the Confidentiality Agreement; provided that in no circumstances shall refrain from engaging any such standstill provision in any future such further confidentiality agreement be more favorable with respect to the purchase of shares of Aquarion Common Stock)) to, or engage in discussions or negotiations between Stockholder and with, any Person in response to a Superior Proposal (as defined in Section 8.11(i)) made by such Person if, and only to the extent that, prior to taking such action, (A) the Board of Directors of Aquarion consults in good faith with its independent legal counsel as to the advisability of furnishing information to, or engaging in discussions or negotiations with, such Person and (B) Aquarion provides reasonable advance notice to Parent to the effect that it is taking such action.
(b) Except and only to the extent provided in paragraph (c) below, neither the Board of Directors of Aquarion nor any committee thereof shall (i) withdraw, modify or change, or propose to withdraw, modify or change, in any manner adverse to Parent, the approval or recommendation by such Board of Directors or such committee of the Merger or this Agreement, (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal, or (iii) cause Aquarion to enter into any agreement (other than Parent and its Affiliates) a confidentiality agreement entered into in accordance with respect Section 5.4(a)), letter of intent, agreement in principle, acquisition agreement or other similar agreement relating to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations)Acquisition Proposal.
(c) Notwithstanding any other provision of this Agreement, in response to a Superior Proposal and after consulting in good faith with its independent legal counsel as to the foregoingadvisability of such action, Aquarion's Board of Directors shall be permitted (subject to this and the restrictions in following sentences), at any time prior to the adoption of this Section 5.2 shall not apply Agreement by the stockholders of Aquarion, (i) with respect to any discussions withdraw, modify or negotiations with respect change, or propose to withdraw, modify or change, the transfer approval or recommendation by the Board of Shares permitted Directors of this Agreement, the Merger or the other transactions contemplated by Section 2.3, this Agreement or (ii) to approve or recommend, or propose to approve or recommend, any Superior Proposal, but only in each case referred to in clauses (i) and (ii), after the fifth Business Day following Parent's receipt of written notice advising Parent that the Board of Directors of Aquarion has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal, identifying the Person making such Superior Proposal and stating that it intends to take any action described in clause (i) or (ii) above. After providing such notice, Aquarion shall provide a reasonable opportunity to Parent within such five Business Day-period to make such adjustments in the terms and conditions of this Agreement as would enable Aquarion to proceed with respect its recommendation to the stockholders of Aquarion without taking any discussions between action described in clauses (i) or (ii) of the Stockholderpreceding sentence; provided that any such adjustments shall be at the discretion of Parent at such time.
(d) Aquarion shall immediately advise Parent orally and in writing of any request for information or any Acquisition Proposal, on the one handmaterial terms and conditions of such request or Acquisition Proposal and the identity of the Person making such request or Acquisition Proposal. Aquarion will keep Parent reasonably informed of the status and details (including amendments or proposed amendments) of any such request or Acquisition Proposal.
(e) Nothing contained in this Section 5.4 shall prohibit Aquarion or its Board of Directors (i) from taking and disclosing to its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act or from making any legally required disclosure to the stockholders of Aquarion with regard to an Acquisition Proposal or (ii) prior to the adoption of this Agreement by the stockholders of Aquarion, and from taking any Affiliate action as contemplated by Section 7.1(f). Nothing in this Section 5.4 shall (x) permit Aquarion to terminate this Agreement (except as specifically provided in Article VII hereof) or Representative (y) affect any other obligation of Stockholder on the other handAquarion under this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Aquarion Co)
Acquisition Proposals. (a) Stockholder agrees that neither From the date hereof until the earlier of the Effective Time or termination of this Agreement pursuant to Section 8(a), Summit shall not, nor shall it nor permit any of its controlled Affiliates (other than the Company or its Subsidiaries) shallSubsidiaries to, and nor shall not it authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an any officer, director director, employee, or employee any investment banker, attorney or other advisor or representative, of the Company) Summit or any of its Subsidiaries to, directly or indirectly, (i) initiate, encourage, solicit, assist, induce initiate or facilitate encourage the making, submission or announcement of any Acquisition Inquiry Proposal (as hereinafter defined) or Acquisition Proposal; (ii) furnish or otherwise provide access to any information regarding any Acquired Company to any Person participate in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition Proposal.
(b) Upon the execution hereof, Stockholder shall immediately cease and cause to be terminated all existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations regarding, or furnish to any Person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal, provided, however, that on or after the date hereof, Summit, any of its Subsidiaries or any officer, director or employee of, or any investment banker, attorney or other advisor or representative of, Summit or any of its Subsidiaries may, following the receipt of an Acquisition Proposal by Summit that the Board of Directors of Summit determines in good faith, following consultation with outside counsel, would permit the Board of Directors to take any of the actions referred to in the first sentence of Section 6(g), furnish information with respect to and participate in negotiations regarding such Acquisition Proposal. Summit shall promptly advise Liberty orally and in writing of the transfer receipt by it (or any of Shares permitted by Section 2.3the other Persons referred to above) after the date hereof of any Acquisition Proposal, or (ii) with respect any inquiry which could reasonably be expected to lead to any discussions between Acquisition Proposal, the Stockholder, on the one handmaterial terms and conditions of such Acquisition Proposal or inquiry, and the identity of the person making any Affiliate such Acquisition Proposal or Representative inquiry. Summit will keep Liberty fully informed of Stockholder the status and details of any such Acquisition Proposal or inquiry. Without limiting the foregoing, it is understood that any violation of the restrictions set forth in the first sentence of this Section 6(g) by any officer, director or employee of Summit or any of its Subsidiaries or any investment banker, attorney or other advisor or representative of Summit or any of its Subsidiaries, whether or not such Person is purporting to act on the other hand.behalf of Summit or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Section 6(f)
Appears in 1 contract
Acquisition Proposals. (a) Stockholder Parent agrees that that, except as otherwise agreed among the parties, neither it Parent nor any Parent Subsidiaries nor any of its controlled Affiliates the respective employees, officers, directors, agents or representatives (other than including counsel, financial advisors and accountants) of Parent or the Company or its Subsidiaries) Parent Subsidiaries shall, and Parent shall cause such Persons not authorize to, initiate, solicit or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) toencourage, directly or indirectly, (i) initiate, encourage, solicit, assist, induce any inquiries or facilitate the making, submission or announcement making of any Acquisition Inquiry proposal or Acquisition Proposal; offer (iiincluding, without limitation, any proposal or offer to stockholders of Parent or any Parent Subsidiary) furnish or otherwise provide access to any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to a merger, consolidation, acquisition, disposition or similar transaction involving, or any Acquisition Inquiry purchase of all or any significant portion of the assets or any equity securities or ownership interests of, International or any International Subsidiary (any such proposal or offer being hereinafter referred to as an "International Acquisition Proposal; "), or (iv) engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any Person relating to an International Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or International Acquisition Proposal.
(b) Upon the execution hereof, Stockholder . Parent shall immediately cease and cause to be terminated all any existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry of the foregoing. Parent shall take all necessary steps to inform the Persons referred to in the first sentence of this Section of the obligations undertaken by Parent in this Section. Parent shall notify Purchaser immediately if any such inquiries or Acquisition Proposal proposals are received by, any such information is requested from, or sale any such negotiations or discussions are sought to be initiated or continued with Parent, any Parent Subsidiary or, to its knowledge, any of Shares held the Persons referred to in the first sentence of this Section. Parent shall promptly request each Person which has heretofore executed a confidentiality agreement in connection with its consideration of acquiring any assets, liabilities and/or equity securities or ownership interests of International or any International Subsidiary to return all confidential information heretofore furnished to such person by Stockholderor on behalf of Parent or any Parent Subsidiary.
(b) Purchaser and Lion agree that, except as otherwise agreed among the parties, neither Purchaser, Lion nor any of their respective Subsidiaries nor any of their respective employees, officers, directors, agents or representatives (including counsel, financial advisors and accountants) shall, and Purchaser and Lion shall refrain from engaging in cause such Persons not to, initiate, solicit or encourage, directly or indirectly, any future discussions inquiries or negotiations between Stockholder and the making of any Person proposal or offer (other than Parent and its Affiliatesincluding, without limitation, any proposal or offer to stockholders of Purchaser, Lion or any of their respective Subsidiaries) with respect to a merger, consolidation, acquisition, disposition or similar trans action involving, or any sale purchase of all or any Shares held by Stockholder significant portion of the assets or of the equity securities or ownership interests of Purchaser (other than any such proposal or offer being hereinafter referred to state that Stockholder is currently not permitted to as a "Purchaser Acquisition Proposal"), or engage in such any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any Person relating to a Purchaser Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement a Purchaser Acquisition Proposal. Lion and Purchaser shall immediately cease and cause to be terminated any existing activities, discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) negotiations with any parties conducted heretofore with respect to any discussions of the foregoing. Lion and Purchaser shall take all necessary steps to inform the Persons referred to in the first sentence of this Section of the obligations undertaken by Lion and Purchaser in this Section. Lion and Purchaser shall notify Parent immediately if any such inquiries or negotiations with respect to the transfer of Shares permitted by Section 2.3proposals are received by, any such information is requested from, or (ii) any such negotiations or discussions are sought to be initiated or continued with respect Purchaser, Lion, any of their respective Subsidiaries or, to its knowledge, any discussions between of the StockholderPersons referred to in the first sentence of this Section. Purchaser and Lion shall promptly request each Person which has heretofore executed a confidentiality agreement in connection with its consideration of acquiring any assets, liabilities and/or equity securities or ownership interests of Purchaser to return all confidential information heretofore furnished to such person by or on the one handbehalf of Purchaser, and Lion or any Affiliate or Representative of Stockholder on the other handtheir respective Subsidiaries.
Appears in 1 contract
Sources: Acquisition Agreement (Browning Ferris Industries Inc)
Acquisition Proposals. (a) Without limiting the Stockholders' other obligations under this Agreement but subject to the last sentence of this Section 5(a), each Stockholder agrees that that, from and after the date hereof to the Termination Date, neither it such Stockholder nor any of its controlled his or her Affiliates shall (other than the Company or its Subsidiaries) shall, and shall not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless both such Stockholder and Affiliates shall have separately engaged use reasonable best efforts to cause their agents and representatives, including any investment banker, attorney or directed accountant retained by such Person in hisStockholder or Affiliates, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to), directly or indirectly, (i) initiate, encourage, solicit, assist, induce encourage or knowingly facilitate (including by way of furnishing information) any inquiries or the making, submission or announcement making of any Acquisition Inquiry or Acquisition Proposal; , (ii) furnish have any discussion with or otherwise provide access to any confidential information regarding any Acquired Company or data to any Person in connection with or in response relating to any Acquisition Inquiry or an Acquisition Proposal; (iii) , or engage in discussions or any negotiations with any Person with respect to any Acquisition Inquiry or concerning an Acquisition Proposal; , or (iv) otherwise knowingly facilitate any effort or attempt to make or implement an Acquisition Inquiry Proposal, (iii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal or (iv) approve or recommend, or propose to approve or recommend, or execute or enter into into, any letter of intent, agreement in principle, letter of intent, memorandum of understanding, term sheetmerger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document agreement or Contract relating propose publicly or agree to do any of the foregoing related to any Acquisition Inquiry Proposal. Each Stockholder agrees that (i) he or she will promptly keep the Purchasers informed of the status and terms of any Acquisition Proposal.
Proposal by any Person (bwhether written or oral), including the identity of the parties involved and (ii) Upon the execution hereofhe or she will, Stockholder shall and will cause his or her Affiliates to, immediately cease and cause to be terminated all existing any activities, discussions or negotiations existing as of the date of this Agreement with any parties Persons (other than Parent the Purchasers and its their respective Affiliates) conducted heretofore with respect to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by StockholderProposal, and request the return or destruction of all non-public information furnished in connection therewith. Notwithstanding the foregoing, nothing in this Section 5 shall refrain from engaging limit or in any future discussions way affect the rights of any Stockholder who is a director of the Company or negotiations between of the Company's Board of Directors under Sections 5.2 and 6.1(b) of the Purchase Agreement.
(b) During the Applicable Period (unless the Purchase Agreement shall have been terminated without the Closing having occurred), each Stockholder agrees that he or she will not, and he or she will not permit any Person (other than Parent and of his or her Affiliates or associates to, directly or indirectly, acquire, offer, agree or propose to acquire, beneficial ownership of any of the securities, assets or businesses of the Company or any of its Affiliates) Subsidiaries; participate in any solicitation of proxies with respect to any sale securities of the Company or any of its Subsidiaries; seek to advise, encourage or influence any Person with respect to the voting of any Shares held by Stockholder (other than of securities of the Company or any of its Subsidiaries; make any proposal to state that Stockholder the board of directors of the Company or any of its Subsidiaries; seek or propose to influence or control the management or policies of the Company or any of its Subsidiaries; make any public statement with respect to the Company or any of its Subsidiaries or otherwise act to disparage the Company or any of its Subsidiaries; take any action which is currently not permitted reasonably likely to engage in such discussions require the Company or any of its Subsidiaries to make any public disclosure; enter into any discussions, negotiations, arrangements or understandings with any third party with respect to any of the foregoing matters; assist or encourage others to do any of the foregoing activities; request permission for any waiver or amendment of the terms of this Section 5(b); or disclose any intention, plan or arrangement inconsistent with any of the foregoing.
(c) Notwithstanding the foregoingFor purposes of this Section 5, the restrictions in this Section 5.2 Company shall not apply (i) with respect to any discussions or negotiations with respect be treated as an "Affiliate" of either of the Stockholders, it being understood that the restrictions applicable to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between Company are set forth in the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other handPurchase Agreement.
Appears in 1 contract
Sources: Support and Option Agreement (Strayer Education Inc)
Acquisition Proposals. (a) Stockholder agrees that neither it nor any of its controlled Affiliates (other than the Company or its Subsidiaries) shall, and shall not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, (i) initiate, encourage, solicit, assist, induce or facilitate the making, submission or announcement of any Acquisition Inquiry or Acquisition Proposal; (ii) furnish or otherwise provide access to any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition Proposal.
(b) Upon the execution hereof, Stockholder SSI shall immediately cease terminate and cause to be terminated all any existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry or Proposal. SSI shall notify Parent immediately if any Acquisition Proposal is received by SSI, indicating the name of the Person making such proposal or sale of Shares held inquiry and the terms and conditions thereof.
(b) From and after the date hereof, unless and until this Agreement is terminated according to its terms or except as expressly permitted by Stockholderthis Section 2.2, SSI shall not, and shall refrain not authorize or permit its officers, directors, employees, investment bankers, attorneys, accountants or other agents to, directly or indirectly: (i) initiate, solicit or encourage, or take any action to facilitate the making of, any offer or proposal that constitutes or is reasonably likely to lead to any Acquisition Proposal; (ii) enter into any agreement with respect to any Acquisition Proposal; (iii) approve, recommend, or propose publicly to approve or recommend, or execute or enter into any merger agreement, acquisition agreement or similar agreement resulting from engaging any Acquisition Proposal; or (iv) in the event of an unsolicited written proposal in respect of an Acquisition Proposal, engage in negotiations or discussions with, or provide any future discussions information or negotiations between Stockholder and data to, any Person (other than Parent Parent, any of its Affiliates or representatives and its Affiliatesexcept for information that has been previously publicly disseminated by the Company) with respect relating to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations)Acquisition Proposal.
(c) Notwithstanding the foregoingprovisions of Section 2.2(b), SSI (and its officers, directors, employees, investment bankers, attorneys, accountants and other agents and representatives) may, at any time prior to the restrictions Company Stockholders’ Meeting, provide information to, and engage in this Section 5.2 shall not apply discussions or negotiations concerning an Acquisition Proposal with any third party who seeks, without prior solicitation (other than solicitations occurring prior to the date hereof) by SSI or its directors, officers, employees, agents or representatives, to initiate such discussions or negotiations if, and only to the extent that, in response to a bona fide written Acquisition Proposal, (A) the SSI Board has determined in good faith, after consultation with its legal and financial advisors, that such discussions may reasonably lead to an SSI Superior Proposal and (B) prior to furnishing such information to, or entering into discussions with such third party, SSI receives from such third party an executed confidentiality agreement containing terms customary in transactions of such nature and SSI notifies Parent of its intention to negotiate with such third party one (1) Business Day prior to engaging in any such negotiations. Except as set forth below, neither the SSI Board nor any committee thereof may (i) effect a change in SSI’s recommendation to approve the SSI Shareholder Proposal, (ii) approve or recommend or propose publicly to approve or recommend voting in favor of a transaction set forth in any Acquisition Proposal or (iii) cause SSI to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to any Acquisition Proposal. Notwithstanding the foregoing, in response to a bona fide unsolicited written Acquisition Proposal from a third party that the SSI Board determines in good faith, after consultation with its legal and financial advisors, is an SSI Superior Proposal, the SSI Board may change its recommendation and may enter into a definitive agreement with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other hand.such Acquisition
Appears in 1 contract
Sources: Principal Stockholder Agreement (Compucom Systems Inc)
Acquisition Proposals. (a) Stockholder Parent agrees that that, except as otherwise agreed among the parties, neither it Parent nor any Parent Subsidiaries nor any of its controlled Affiliates the respective employees, officers, directors, agents or representatives (other than including counsel, financial advisors and accountants) of Parent or the Company or its Subsidiaries) Parent Subsidiaries shall, and Parent shall cause such Persons not authorize to, initiate, solicit or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) toencourage, directly or indirectly, (i) initiate, encourage, solicit, assist, induce any inquiries or facilitate the making, submission or announcement making of any Acquisition Inquiry proposal or Acquisition Proposal; offer (iiincluding, without limitation, any proposal or offer to stockholders of Parent or any Parent Subsidiary) furnish or otherwise provide access to any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to a merger, consolidation, acquisition, disposition or similar transaction involving, or any Acquisition Inquiry purchase of all or any significant portion of the assets or any equity securities or ownership interests of, International or any International Subsidiary (any such proposal or offer being hereinafter referred to as an "International Acquisition Proposal; "), or (iv) engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any Person relating to an International Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or International Acquisition Proposal.
(b) Upon the execution hereof, Stockholder . Parent shall immediately cease and cause to be terminated all any existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry of the foregoing. Parent shall take all necessary steps to inform the Persons referred to in the first sentence of this Section of the obligations undertaken by Parent in this Section. Parent shall notify Purchaser immediately if any such inquiries or Acquisition Proposal proposals are received by, any such information is requested from, or sale any such negotiations or discussions are sought to be initiated or continued with Parent, any Parent Subsidiary or, to its knowledge, any of Shares held the Persons referred to in the first sentence of this Section. Parent shall promptly request each Person which has heretofore executed a confidentiality agreement in connection with its consideration of acquiring any assets, liabilities and/or equity securities or ownership interests of International or any International Subsidiary to return all confidential information heretofore furnished to such person by Stockholderor on behalf of Parent or any Parent Subsidiary.
(b) Purchaser and Lyonnaise agree that, prior to the Share Closing, except as otherwise agreed among the parties, neither Purchaser, Lyonnaise nor any of their respective Subsidiaries nor any of their respective employees, officers, directors, agents or representatives (including counsel, financial advisors and accountants) shall, and Purchaser and Lyonnaise shall refrain from engaging in cause such Persons not to, initiate, solicit or encourage, directly or EXECUTION COPY indirectly, any future discussions inquiries or negotiations between Stockholder and the making of any Person proposal or offer (other than Parent and its Affiliatesincluding, without limitation, any proposal or offer to stockholders of Purchaser, Lyonnaise or any of their respective Subsidiaries) with respect to a merger, consolidation, acquisition, disposition or similar trans action involving, or any sale purchase of all or any Shares held by Stockholder significant portion of the assets or of the equity securities or ownership interests of Purchaser (other than any such proposal or offer being hereinafter referred to state that Stockholder is currently not permitted to as a "Purchaser Acquisition Proposal"), or engage in such any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any Person relating to a Purchaser Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement a Purchaser Acquisition Proposal. Lyonnaise and Purchaser shall immediately cease and cause to be terminated any existing activities, discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) negotiations with any parties conducted heretofore with respect to any discussions of the foregoing which occur or negotiations with respect have occurred prior to the transfer Share Closing. Lyonnaise and Purchaser shall take all necessary steps to inform the Persons referred to in the first sentence of Shares permitted this Section of the obligations undertaken by Section 2.3Lyonnaise and Purchaser in this Section. Prior to the Share Closing, Lyonnaise and Purchaser shall notify Parent immediately if any such inquiries or proposals are received by, any such information is requested from, or (ii) any such negotiations or discussions are sought to be initiated or continued with respect Purchaser, Lyonnaise, any of their respective Subsidiaries or, to its knowledge, any discussions between of the StockholderPersons referred to in the first sentence of this Section. Purchaser and Lyonnaise shall promptly request each Person which has heretofore executed a confidentiality agreement in connection with its consideration of acquiring any assets, liabilities and/or equity securities or ownership interests of Purchaser to return all confidential information heretofore furnished to such person by or on the one handbehalf of Purchaser, and Lyonnaise or any Affiliate or Representative of Stockholder on the other handtheir respective Subsidiaries.
Appears in 1 contract
Sources: Stock Purchase Agreement (Browning Ferris Industries Inc)
Acquisition Proposals. (a) Stockholder agrees that neither Except as otherwise expressly contemplated by this Section 8.4, the Company shall not, nor shall it nor authorize or permit any of its controlled Affiliates (other than the Company or its Subsidiaries) shall, and shall not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, (i) solicit or initiate, or knowingly encourage, solicit, assist, induce or facilitate the making(including by way of providing information) any Alternative Transaction Proposal or any inquiry or proposal that constitutes or may reasonably be expected to result in an Alternative Transaction Proposal, submission or announcement of any Acquisition Inquiry or Acquisition Proposal; (ii) furnish or otherwise provide access to participate in any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person regarding, or furnish to any Person any non-public information with respect to, or cooperate in any way with any Person (whether or not a Person making an Alternative Transaction Proposal) with respect to any Acquisition Inquiry Alternative Transaction Proposal or Acquisition any inquiry or proposal that may reasonably be expected to result in an Alternative Transaction Proposal; , (iii) approve or recommend any Alternative Transaction Proposal, (iv) otherwise facilitate any effort approve or attempt to make recommend, or implement an Acquisition Inquiry or Acquisition Proposal execute or enter into into, any letter of intent, agreement in principle, letter of intent, memorandum of understanding, term sheetmerger agreement, acquisition asset or share purchase or share exchange agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating agreement related to any Alternative Transaction Proposal (an “Acquisition Inquiry Agreement”) or Acquisition Proposal.
(bv) Upon enter into any agreement or agreement in principle requiring the execution hereofCompany to abandon, Stockholder terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder. The Company shall, and shall cause its Representatives to, immediately cease and cause to be terminated all existing activities, discussions or negotiations (if any) with any parties (other than Parent and its Affiliates) Person conducted heretofore with respect to any Acquisition Inquiry Alternative Transaction Proposal, or Acquisition any inquiry or proposal that may reasonably be expected to result in an Alternative Transaction Proposal, request the prompt return or destruction of all confidential information previously furnished and immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives. Notwithstanding the foregoing, if in response to an unsolicited bona fide written Alternative Transaction Proposal, which did not result from any breach of this Section 8.4, the Company Board or any committee thereof determines in good faith (after consultation with its outside legal and financial advisors) that such Alternative Transaction Proposal is, or sale is reasonably likely to result in, a Superior Proposal, then the Company may, subject to compliance with Section 8.4(e), prior to (but not after) the receipt of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between the Company Stockholder and any Person Approval: (other than Parent and its Affiliatesx) furnish information (including non-public information) with respect to the Company and the Company Subsidiaries to the Person making such Alternative Transaction Proposal (and its Representatives) pursuant to an Acceptable Confidentiality Agreement; provided, that a copy of all such information not previously provided to Parent (or its Representatives) (together with a copy of the Alternative Transaction Proposal) is provided to Parent substantially concurrently with the time it is provided to such Person, and (y) participate in discussions or negotiations with the Person making such Alternative Transaction Proposal (and its Representatives) regarding the terms of such Alternative Transaction Proposal; provided, that the Company shall within 24 hours provide Parent with a written summary of the discussions and negotiations with respect to the Alternative Transaction Proposal. The Company agrees that neither it nor any sale of the Company Subsidiaries shall terminate, waive, amend, modify or fail to enforce any existing standstill or confidentiality obligations (if any) owed by any Person to the Company or the Company Subsidiaries, in each case, except to the extent necessary to permit the Company to take an action it is otherwise permitted to take under this Section 8.4(a)(x) or (y) in full compliance with such provision; provided, that the Company (on behalf of itself and the Company Subsidiaries) hereby waives any such standstill obligation to the extent necessary to permit a Person otherwise covered by such standstill to submit a confidential unsolicited bona fide written Alternative Transaction Proposal to the Company Board. For purposes of clarification, the taking of any Shares held of the actions contemplated by Stockholder clause (x) or (y) of this Section 8.4(a) shall be deemed not to be an Adverse Recommendation Change.
(b) The Company Board shall not, and shall cause each of its committees not to, directly or indirectly, (i) (A) change, qualify, withhold, withdraw or modify (or authorize or publicly propose to change, qualify, withhold, withdraw or modify), in any such case in a manner adverse to Parent, the Company Board Recommendation or the approval, adoption, recommendation or declaration of advisability by the Company Board or any committee thereof with respect to this Agreement or the Merger and the other transactions contemplated by this Agreement, (B) recommend, adopt, approve or declare advisable, or propose publicly to recommend, adopt, approve, or declare advisable, any Alternative Transaction Proposal, (C) recommend, adopt, approve, or declare advisable, or propose to recommend, adopt, approve or declare advisable, or allow the Company or any of the Company Subsidiaries to execute or enter into, any Acquisition Agreement (other than an Acceptable Confidentiality Agreement), (D) enter into any agreement, letter of intent, or agreement in principle requiring the Company to state that Stockholder is currently not permitted abandon, terminate or fail to engage consummate the transactions contemplated hereby or breach its obligations hereunder, (E) subject to Section 8.4(f), fail to recommend against any Alternative Transaction Proposal within ten (10) Business Days after the commencement of such Alternative Transaction Proposal, (F) fail to include the Company Board Recommendation in the Proxy Statement or reaffirm such discussions Company Board Recommendation at the request of Parent within five (5) Business Days or negotiations(ii) resolve or agree to do any of the foregoing (each being referred to as an “Adverse Recommendation Change”).
(c) Notwithstanding the foregoing provisions, the Company Board may, prior to (but not after) receipt of the Company Stockholder Approval, make an Adverse Recommendation Change if (i) in response to an unsolicited bona fide written Alternative Transaction Proposal, the Company Board determines (after consultation with its outside legal and financial advisors) that such unsolicited bona fide written Alternative Transaction Proposal constitutes a Superior Proposal or (ii) an Intervening Event has occurred, and in either case, following consultation with outside legal counsel, the Company Board determines that the failure to make an Adverse Recommendation Change would be inconsistent with its fiduciary duties to the stockholders of the Company under Applicable Law; provided, however, that the Company shall not be entitled to exercise its right to make an Adverse Recommendation Change until after the fifth (5th) Business Day (the “Recommendation Change Notice Period”) following Parent’s receipt of written notice (a “Company Notice of Recommendation Change”) from the Company advising Parent that the Company Board intends to take such action, which notice shall (A) if made in connection with a Superior Proposal, include the terms and conditions of any Superior Proposal that is the basis of the proposed action by the Company Board and the identity of the party making such Superior Proposal, and, if applicable, a copy of all of the relevant proposed transaction agreements and any other documents provided by, or correspondence with, the party making such Superior Proposal, including the then-current form of the definitive agreements with respect to such Superior Proposal and any related financing commitments in the Company’s possession (or, in each case, if not provided in writing to the Company, a written summary of the terms thereof) (it being understood and agreed that any material amendment to the terms of such Superior Proposal shall require a new Company Notice of Recommendation Change and trigger a new Recommendation Change Notice Period) and (B) if made in connection with an Intervening Event, provide reasonable details regarding such Intervening Event. The Company Board may not make an Adverse Recommendation Change in respect of a Superior Proposal if any such Superior Proposal resulted from a material breach by the Company of this Section 8.4. Notwithstanding anything to the contrary contained herein, neither the Company nor any Company Subsidiary shall enter into any acquisition agreement pursuant to an Alternative Transaction Proposal unless this Agreement has been terminated in accordance with its terms and the Company Termination Fee has been paid in the manner provided in Section 10.3(b).
(d) Notwithstanding the foregoing, in determining whether to make an Adverse Recommendation Change, the restrictions Company Board shall take into account any changes to the terms of this Agreement committed to by Parent in response to a Company Notice of Recommendation Change or otherwise; provided, that the Company shall, and shall cause its outside legal counsel and financial advisor to, during the Recommendation Change Notice Period and prior to any Adverse Recommendation Change, negotiate with Parent in good faith (to the extent Parent also seeks to negotiate) to make such adjustments in the terms and conditions of this Agreement so that (i) in the event of a Company Notice of Recommendation Change in respect of a Superior Proposal, this Agreement would result in a transaction that would be no less favorable to the stockholders of the Company than any Alternative Transaction Proposal that would be deemed to constitute a Superior Proposal in the absence of such adjustments or (ii) in the event of a Company Notice of Recommendation Change in connection with an Intervening Event, such Adverse Recommendation Change would no longer be necessary to comply with the Company Board’s fiduciary duties to the stockholders of the Company under Applicable Law, and, in each case as applicable, in the event Parent agrees to make such adjustments to the Agreement, no Adverse Recommendation Change shall be made.
(e) In addition to the forgoing obligations of the Company set forth in this Section 5.2 8.4, the Company shall, within 24 hours of the receipt thereof, advise Parent orally of any Alternative Transaction Proposal, the material terms and conditions of any such Alternative Transaction Proposal (including any changes thereto) and the identity of the Person making any such Alternative Transaction Proposal. The Company shall not apply (i) keep Parent informed in all material respects and on a reasonably current basis (and in no event later than 24 hours from the occurrence or existence of any material event, fact or circumstance) of the status and details (including any material change to the terms thereof) of any Alternative Transaction Proposal, and (ii) provide to Parent as soon as practicable after receipt or delivery thereof copies of all correspondence and other written material exchanged between the Company or any of the Company Subsidiaries and any Person that describes any of the terms or conditions of any Alternative Transaction Proposal. The Company shall not, and shall cause Company Subsidiaries not to, enter into any confidentiality agreement with respect any person subsequent to the date of this Agreement which prohibits the Company from providing such information to Parent and shall otherwise keep Parent reasonably informed of the status of any discussions or negotiations and of any modifications to such inquiries, proposals or offers.
(f) Nothing contained in this Agreement shall prohibit the Company from complying with respect Rules 14a-9, 14d-9, 14e-2 and Item 1012(a) of Regulation M-A promulgated under the Exchange Act, or from issuing a “stop, look and listen” statement pending disclosure of its position thereunder or making any required disclosure to the transfer Company’s stockholders if, in the good faith judgment of Shares permitted by the Company Board, after consultation with its outside legal counsel, the failure to do so would be inconsistent with its fiduciary duties under Applicable Law or such disclosure is otherwise required under Applicable Law; provided, that any such statement that would be an Adverse Recommendation Change shall be in accordance with Section 2.3, or (ii8.4(c) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other handSection 8.4(d).
Appears in 1 contract
Acquisition Proposals. (a) Stockholder agrees that neither it nor any From the date of its controlled this Agreement through the earlier of the Closing Date or the termination of this Agreement, Sellers and their Affiliates (other than the Company or its Subsidiaries) shallshall not, and shall cause their Representatives not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, indirectly (i) solicit, initiate, support, encourage, solicitfacilitate or accept any inquiries, assistproposals, induce offers or facilitate other indications of interest by or from any Person other than Buyer, Reinsurers and their respective Affiliates acting together (the making, submission or announcement of any “Acquisition Inquiry or Parties”) with respect to an Acquisition Proposal; , (ii) enter into, maintain, continue or otherwise participate in any discussions, conversations, negotiations or other communications with any Person other than the Acquisition Parties with respect to an Acquisition Proposal, (iii) furnish or otherwise provide access to confirm any information regarding any Acquired Company to any Person other than the Acquisition Parties in connection with or in response to any Acquisition Inquiry or an Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Inquiry or Acquisition Proposal; or , (iv) otherwise assist, facilitate or encourage the making of, or cooperate in any effort way regarding, any inquiry, proposal, offer, request or attempt other indication of interest by or from any Person other than the Acquisition Parties with respect to make or implement an Acquisition Inquiry Proposal, or Acquisition Proposal or (v) enter into any agreement in principleterm sheet, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document non-binding or Contract relating binding understanding or arrangement (whether oral or written) with, or accept or agree to any offer or proposal by or from, any Person other than the Acquisition Inquiry or Parties with respect to an Acquisition Proposal.
(b) Upon From the execution hereofdate of this Agreement through the earlier of the Closing Date or the termination of this Agreement, Stockholder Sellers and each of their Affiliates shall, and shall immediately cause their respective Representatives to, cease and cause to be terminated all terminate immediately any existing activities, discussions or negotiations with respect to or in furtherance of any parties (Acquisition Proposal with any Person other than Parent and its Affiliates) conducted heretofore with respect to any the Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations)Parties.
(c) Notwithstanding the foregoing, the restrictions in For purposes of this Section 5.2 shall not apply 7.7, “Acquisition Proposal” means any of the following transactions, whether direct or indirect (but excluding, in each case, this Agreement and the Ancillary Agreements and the transactions contemplated hereby and thereby): (i) with respect to any discussions acquisition, purchase or negotiations with respect to other transaction involving the direct or indirect sale or transfer of all or any material portion of the Business or the Acquired Assets (excluding reinsurance or sales of investment assets in the ordinary course of business), (ii) any merger, consolidation, business combination, reorganization, dissolution, recapitalization or similar transaction involving the transfer of Shares permitted by Section 2.3any material portion of the Business or the Acquired Assets, or (iiiii) with respect to any discussions between bulk reinsurance or similar transaction involving all or any material portion of the Stockholder, on Business or the one hand, and any Affiliate or Representative Acquired Assets (excluding reinsurance in the ordinary course of Stockholder on the other handbusiness).
Appears in 1 contract
Sources: Master Transaction Agreement (Protective Life Insurance Co)
Acquisition Proposals. (a) Stockholder agrees that neither it nor any During the period from the date of its controlled Affiliates (other than this Agreement through the Company Closing Date or its Subsidiaries) shallthe termination of this Agreement pursuant to Article 9, each Delanco Entity shall not, and shall cause its respective Representatives not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, (i) take any action to solicit, encourage (including by providing information or assistance), initiate, encourage, solicit, assist, facilitate or induce or facilitate the making, submission or announcement of any Acquisition Inquiry or Acquisition Proposal; , (ii) participate or engage in any discussions or negotiations regarding, or furnish or otherwise provide access cause to any information regarding any Acquired Company be furnished to any Person in connection any nonpublic information with respect to, or in response take any action to facilitate any Acquisition Inquiry inquiries or the making of any offer or proposal that constitutes, or may reasonably be expected to lead to an Acquisition Proposal; , (iii) engage in discussions approve, agree to, accept, endorse or negotiations with any Person with respect to recommend any Acquisition Inquiry or Acquisition Proposal; , or (iv) approve, agree to, accept, endorse or recommend, or propose to approve, agree to, accept, endorse or recommend any Acquisition Agreement contemplating or otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry Transaction. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 7.2 by any Subsidiary or Acquisition ProposalRepresentative of Delanco shall constitute a breach of this Section 7.2 by Delanco.
(b) Upon Notwithstanding anything to the execution hereofcontrary in Section 7.2(a), Stockholder shall immediately cease if Delanco or any of its Representatives receives an unsolicited, bona fide written Acquisition Proposal by any Person or “Group” (as such term is defined in Section 13(d) under the Exchange Act) at any time prior to Delanco’s Shareholders’ Meeting that did not result from or arise in connection with a breach of Section 7.2(a), Delanco may, and may permit Delanco Subsidiaries and its Representatives to furnish or cause to be terminated all existing activities, discussions or negotiations with any parties (other than Parent furnished nonpublic information and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging participate in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to such Acquisition Proposal, if the transfer board of Shares directors of Delanco (or any committee thereof) has (i) determined, in its good faith judgment (after consultation with Delanco’s financial advisors and outside legal counsel), that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal and that the failure to take such actions would be reasonably likely to cause it to violate its fiduciary duties under applicable Law, and (ii) prior to furnishing any nonpublic information or engaging in any discussions permitted by this sentence, obtained from such Person or “Group” an executed confidentiality agreement containing terms at least as restrictive with respect to such Person or “Group” as the terms of the confidentiality agreement entered into between Delanco and First Bank are with respect to First Bank (and such confidentiality agreement shall not provide such Person or “Group” with any exclusive right to negotiate with Delanco). Delanco will promptly (but in no event more than 24 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or any inquiry that could reasonably be expected to lead to any Acquisition Proposal, advise First Bank in writing of the receipt of such Acquisition Proposal, request or inquiry, and the terms and conditions of such Acquisition Proposal, request or inquiry (including, in each case, the identity of the Person or “Group” (as such term is defined in Section 2.313(d) under the Exchange Act) making any such Acquisition Proposal, request or inquiry), and provide to First Bank (i) a copy of such Acquisition Proposal, request or inquiry, if in writing, or (ii) a written summary of the material terms of such Acquisition Proposal, request or inquiry, if oral. If the board of directors of Delanco has determined in its good faith judgement (after consultation with Delanco's financial advisors and outside legal counsel) that making the Delanco Recommendation would be reasonably likely to cause it to violate its fiduciary duty under applicable Law, then in submitting this Agreement to its stockholders, the board of directors of Delanco may make a Change in the Delanco Recommendation (although the resolutions approving this Agreement as of the date hereof may not be rescinded or amended); provided, that the board of directors of Delanco may not take any actions under this sentence unless (i) prior to such action it has complied in all respects with its obligations under this Agreement, including Sections 7.1 and 7.2, and following such action it complies with, and fulfills, its obligations under Sections 7.1 and 7.2, (ii) Delanco gives First Bank at least five Business Days’ prior written notice of its intention to make a Change in the Delanco Recommendation and a reasonable description of the event or circumstances giving rise to its determination to take such action (including, the latest material terms and conditions of, and the identity of the third party making, any Acquisition Proposal, or any amendment or modification thereof) and (iii) at the end of such notice period, the board of directors of Delanco takes into account any amendment or modification to this Agreement proposed by First Bank and after receiving the advice of its outside counsel, has determined in its good faith judgment that it would nevertheless be reasonably likely to result in a violation of its fiduciary duties under applicable Law to continue to make the Delanco Recommendation. Any amendment to any Acquisition Proposal will be deemed to be a new Acquisition Proposal for purposes of this Section 7.2 and will require a new notice period as referred to in this Section 7.2. Notwithstanding any Change in the Delanco’s Recommendation, this Agreement shall be submitted to the shareholders of Delanco at Delanco’s Shareholders’ Meeting in accordance with Section 7.1(c); provided, that if the board of directors of Delanco shall have effected a Change in the Delanco Recommendation, then the board of directors of Delanco, in connection with the submission of this Agreement to the shareholders of Delanco may submit this Agreement without recommendation (although the resolutions approving this Agreement as of the date hereof may not be rescinded or amended), in which event the board of directors of Delanco may communicate the basis for its lack of a recommendation to the shareholders of Delanco in the Proxy Statement or an appropriate amendment or supplement thereto. In addition to the foregoing, Delanco shall not submit to the vote of its shareholders any Acquisition Proposal other than the Merger or enter into any Acquisition Agreement with respect to any discussions between Acquisition Transaction other than the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other handMerger.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Delanco Bancorp, Inc.)
Acquisition Proposals. (a) Stockholder agrees that neither it nor any of The Company shall not, shall cause its controlled Affiliates (other than the Company or its Subsidiaries) shallSubsidiaries not to, and shall not authorize or permit instruct its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, : (i) initiate, encourage, solicit, assist, induce or knowingly encourage or knowingly facilitate the making, submission or announcement of any Acquisition Inquiry Proposal or any inquiries regarding, or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal; (ii) furnish engage in, continue or otherwise provide access to any information regarding any Acquired Company to any Person participate in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition Proposal.
(b) Upon the execution hereof, Stockholder shall immediately cease and cause to be terminated all existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3any Acquisition Proposal; or (iii) provide any non-public information to any Person (other than Parent, Aventis, Purchaser, or any designees of Parent, Aventis or Purchaser) in connection with, or for the purpose of knowingly encouraging or knowingly facilitating, an Acquisition Proposal or any proposal or offer that would reasonably be expected to lead to an Acquisition Proposal. The Company shall, and shall cause its Subsidiaries to, and shall instruct its Representatives to, immediately cease any direct or indirect solicitation, discussions, or negotiations with any Person (iiother than Parent, Aventis, Purchaser, or any designees of Parent, Aventis or Purchaser) with respect to any Acquisition Proposal, and, to the extent the Company has the right to do so, shall request the return or destruction of all confidential information provided by or on behalf of the Company or any of its Subsidiaries to any such Person. Notwithstanding anything to the contrary contained in this Agreement, the Company and its Representatives may (A) seek to clarify and understand the terms and conditions of any inquiry or proposal made by any Person solely to determine whether such inquiry or proposal constitutes an Acquisition Proposal and (B) solely inform a Person that has made an Acquisition Proposal or an inquiry with respect to an Acquisition Proposal of the provisions of this Section 6.3.
(b) Notwithstanding Section 6.3(a) or any other provision of this Agreement, if at any time following the date of this Agreement and prior to the Acceptance Time, (i) the Company has received a written Acquisition Proposal from any Person or group of Persons, which Acquisition Proposal was made or renewed after the date of this Agreement and did not result from a breach in any material respect of this Section 6.3 and (ii) the Company Board or a committee thereof determines that such Acquisition Proposal constitutes or is reasonably likely to lead to or result in a Superior Proposal, then the Company may (A) furnish information (including non-public information) with respect to the Company and its Subsidiaries to the Person making such Acquisition Proposal and its Representatives and (B) participate in discussions between or negotiations with such Person and its Representatives regarding such Acquisition Proposal; provided, that, (1) the Stockholder, on the one handCompany shall not, and shall instruct its Representatives not to, disclose any Affiliate material non-public information to such Person unless the Company has, or Representative of Stockholder on first enters into, a confidentiality agreement with such Person with terms governing confidentiality that, taken as a whole, are not materially less restrictive to the other handPerson than those contained in the Confidentiality Agreement, except that such confidentiality agreement need not include explicit or implicit standstill provisions that would restrict the making of or amendment or modification to an Acquisition Proposal, and (2) the Company shall, as promptly as reasonably practicable, and in any event within one (1) Business Day, provide or make available to Parent any material non-public information concerning the Company or any of its Subsidiaries provided or made available to such other Person that was not previously provided or made available to Parent or Purchaser; provided, further, that the Company may only take the actions described in clauses (A) and (B) above if the Company Board, or a committee thereof, determines, in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to take any such action would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law.
(c) The Company shall promptly (and in any event within twenty-four (24) hours) notify Parent of the receipt by the Company of any Acquisition Proposal or written indication by any Person that it is considering making an Acquisition Proposal, including the identity of the Person or group of Persons making such Acquisition Proposal. The Company shall (i) provide Parent promptly (and in any event within such twenty-four (24) hour period) a summary of the material terms and conditions of any such Acquisition Proposal, (ii) keep Parent reasonably informed of any material developments regarding any Acquisition Proposal on a prompt basis and (iii) upon the reasonable request of Parent, reasonably inform Parent of the status of such Acquisition Proposal.
(d) The Company Board and each committee thereof shall not, subject to the terms and conditions of this Agreement, (i) cause or permit the Company or the Company’s Subsidiaries to enter into any acquisition agreement, merger agreement, or similar definitive agreement (other than a confidentiality agreement referred to and entered into in compliance with Section 6.3(b)) relating to any Acquisition Proposal (an “Alternative Acquisition Agreement”) or (ii) make a Change of Board Recommendation.
(e) Notwithstanding Section 6.3(d) or any other provision of this Agreement, prior to the Acceptance Time:
(i) the Company may terminate this Agreement to enter into an Alternative Acquisition Agreement if (A) the Company receives an Acquisition Proposal that the Company Board or a committee thereof determines in good faith constitutes a Superior Proposal; (B) the Company has notified Parent in writing that it intends to terminate this Agreement to enter into an Alternative Acquisition Agreement and (C) no earlier than the end of the Notice Period, the Company Board or any committee thereof determines in good faith, after taking into consideration the terms of any proposed amendment or modification to this Agreement that Parent has irrevocably committed in writing to make during the Notice Period, that the Acquisition Proposal that is subject of the Determination Notice continues to constitute a Superior Proposal;
(ii) the Company Board or a committee thereof may make a Change of Board Recommendation if and only if (A) the Company receives an Acquisition Proposal that the Company Board or a committee thereof determines in good faith, after consultation with the Company’s outside legal counsel and financial advisors, constitutes a Superior Proposal, (B) the Company has notified Parent in writing that it intends to effect a Change of Board Recommendation and (C) no earlier than the end of the Notice Period, the Company Board or a committee thereof determines in good faith that the failure to make a Change of Board Recommendation would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, after taking into consideration any proposed amendment or modification to this Agreement that Parent has irrevocably committed in writing to make during the Notice Period;
(iii) other than in connection with an Acquisition Proposal, the Company Board or a committee thereof may make a Change of Board Recommendation in response to an Intervening Event if and only if (A) the Company has notified Parent in writing that it intends to effect a Change of Board Recommendation and (B) no earlier than the end of the Notice Period, the Company Board or any committee thereof determines in good faith, after consultation with the Company’s outside legal counsel, and after considering the terms of any proposed amendment or modification to this Agreement that Parent has irrevocably committed in writing to make during the Notice Period, that the failure to effect a Change of Board Recommendation in response to such Intervening Event would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law; and
(iv) during any Notice Period, if requested by Parent, the Company shall negotiate in good faith with Parent regarding potential amendments or modifications to the terms of this Agreement.
(v) The provisions of this Section 6.3(e) apply to any material amendment to the financial terms of any applicable Superior Proposal with respect to Section 6.3(e)(i) and Section 6.3(e)(ii) and require a revised Determination Notice and a new Notice Period pursuant to clause (i)(C) or (ii)(C) with respect to such Sections, as the case may be.
(f) Nothing contained in this Agreement prohibits (i) the Company Board or a committee thereof from (A) taking and disclosing to the holders of Shares a position contemplated by Rule 14e-2(a) and Rule 14d-9 promulgated under the Exchange Act, including a “stop, look and listen” communication pursuant to Rule 14d-9(f) of the Exchange Act, or (B) making any public statement if the Company Board or a committee thereof determines that the failure to make such statement would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law or (ii) the Company or the Company Board from making any disclosure required under the Exchange Act; provided, that, any such action that would otherwise constitute a Change of Board Recommendation shall be made only in accordance with Section 6.3 (it being understood and agreed that any such communication that expressly reaffirms the Company Board Recommendation shall be deemed not to be a Change of Board Recommendation).
Appears in 1 contract
Acquisition Proposals. (ai) Stockholder agrees that neither Kroll shall not, nor shall it nor permit any of its controlled Affiliates (other than the Company subsidiaries to, nor shall it permit any director, officer or its Subsidiaries) shall, and shall not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or key employee of the CompanyKroll or any of its subsidiaries, agents or representatives (including any investment banker, attorney or accountant ("Representatives") retained by it or any of its subsidiaries) to, directly or indirectly, (iA) initiate, encouragesolicit or encourage any inquiries with respect to, solicitor the making of, assist, induce or facilitate the making, submission or announcement of any Acquisition Inquiry or an Acquisition Proposal; , (ii) furnish or otherwise provide access to any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iiiB) engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any individual, corporation (including not-for-profit), general or negotiations with limited partnership, limited liability company, joint venture, estate, trust, association, organization, Governmental Authority or other entity of any Person with respect kind or nature (each, a "Person") relating to any Acquisition Inquiry or an Acquisition Proposal; , (C) approve or (iv) otherwise facilitate recommend or propose publicly to approve or recommend, any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or (D) approve or recommend, or propose to approve or recommend, or execute or enter into into, any letter of intent, agreement in principle, letter of intent, memorandum of understanding, term sheetmerger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract agreement relating to any Acquisition Inquiry Proposal or propose publicly or agree to do any of the foregoing relating to any Acquisition Proposal.
(bii) Upon Notwithstanding anything in this Agreement to the execution hereofcontrary, Stockholder nothing contained in this Agreement shall prevent Kroll or the Kroll Board from complying with its disclosure obligations under Sections 14d-9 and 14e-2 of the Exchange Act with regard to an Acquisition Proposal; provided, however, that if such disclosure has the effect of withdrawing, modifying or qualifying the approval of this Agreement by the Kroll Board or the Kroll Board Recommendation in a manner adverse to MMC, MMC shall have the right to terminate this Agreement to the extent set forth in Section 7.4(a) of this Agreement.
(iii) Notwithstanding anything in this Agreement to the contrary, nothing contained in this Agreement shall prevent Kroll or any officer, director, key employee or Representative of Kroll or any of its subsidiaries acting on behalf of or at the direction of Kroll or any of its subsidiaries, or the Kroll Board from at any time prior to, but not after, the time this Agreement is adopted by the Kroll Stockholders at the Kroll Stockholders Meeting, (A) providing information in response to a request therefor by, or engaging in any negotiations or discussions with, a Person who has made an unsolicited bona fide written Acquisition Proposal that is not made in violation of Section 5.3(b)(i) if the Kroll Board receives from such Person an executed confidentiality agreement on customary terms no less favorable to Kroll than the Confidentiality Agreement, dated as of April 14, 2004, between Kroll and MMC (the "Confidentiality Agreement"); or (B) recommending such an unsolicited bona fide written Acquisition Proposal to the Kroll Stockholders, if and only to the extent that, (1) in each such case referred to in clause (A) or (B) above, the Kroll Board determines in good faith after consultation with outside legal counsel that such action is necessary in order for its directors to comply with their respective fiduciary duties under Applicable Law, (2) in the case of clause (A) above, the Kroll Board determines in good faith after consultation with outside legal counsel and outside financial advisors that it is reasonably likely that such Acquisition Proposal would result in a Superior Proposal; and (3) in the case of clause (B) above, the Kroll Board determines in good faith that such Acquisition Proposal (in the form, other than immaterial changes, that was the subject of the Superior Proposal Notice, as defined below) constitutes a Superior Proposal and MMC shall have received written notice (the "Superior Proposal Notice") of Kroll's intention to take the action referred to in clause (B) at lea▇▇ ▇▇▇▇e business days prior to the taking of such action by Kroll (the "Waiting Period"); provided, that the Kroll Board continues to believe, after taking into account any modifications to the terms of the transaction contemplated by this Agreement that are proposed by MMC after its receipt of the Superior Proposal Notice (with respect to which modifications Kroll and MMC shall endeavor to negotiate in good faith), that such Acquisition Proposal constitutes a Superior Proposal. If the Kroll Board recommends an unsolicited bona fide written Acquisition Proposal pursuant to clause (B) above, MMC shall be entitled to terminate this Agreement pursuant to Section 7.4(a) of the Agreement.
(iv) Kroll agrees that it will immediately cease and cause to be terminated all any existing activities, discussions or negotiations with any parties Person (other than Parent and its Affiliatesthe parties hereto) conducted heretofore with respect to any Acquisition Inquiry or Acquisition Proposal or sale Proposal. Kroll agrees that it will use reasonable best efforts to promptly inform the officers, directors, key employees and Representatives of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent Kroll and its Affiliates) with respect to any sale subsidiaries of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions obligations undertaken in this Section 5.2 shall not apply 5.3(b). Kroll also agrees promptly, but in any event, within five days after the date of this Agreement, to request the return or destruction of all information and materials provided (i) with respect to any discussions Person other than the parties hereto) during the 18 months prior to the date of this Agreement by it, its subsidiaries or negotiations their respective Representatives with respect to the transfer consideration or making of Shares permitted by Section 2.3any Acquisition Proposal.
(v) From and after the execution of this Agreement, Kroll shall promptly, orally notify MMC of any request for information or (ii) any inquiries, proposals or offers relating to an Acquisition Proposal, indicating, in connection with such notice, the name of such Person making such request, inquiry, proposal or offer and the material terms and conditions of any proposals or offers and Kroll shall provide to MMC written notice of any such inquiry, proposal or offer within 24 hours of such event. Kroll shall keep MMC informed orally on a reasonably current basis of the status of any Acquisition Proposal, including with respect to the status and terms of any discussions between such proposal or offer and whether any such proposal or offer has been withdrawn or rejected and Kroll shall provide to MMC written notice of any such material developments within 24 hours. Kroll also agrees to provide any information to MMC that it is providing to another Person pursuant to this Section 5.3(b) at substantially the Stockholdersame time it provides such information to such other Person, on unless MMC has already been provided such information.
(vi) Without limiting the one handforegoing, and it is understood that any Affiliate violation of the restrictions set forth in this Section 5.3(b) by any officer, director or key employee of Kroll or any of its subsidiaries or any Representative of Stockholder Kroll or any of its subsidiaries, whether or not such Person is purporting to act on the other hand.behalf of Kroll or any of its subsidiaries or otherwise, shall be deemed to be a breach of this Section 5.3(b)
Appears in 1 contract
Sources: Merger Agreement (Kroll Inc)
Acquisition Proposals. (a) Stockholder agrees that neither it nor any of its controlled Affiliates (other than the Company or its Subsidiaries) shallSo long as this Agreement remains in effect, except as otherwise expressly permitted by this Agreement, PBI shall not, and shall not authorize authorize, permit or permit its Representatives cause any PBI Subsidiary and their respective officers, directors, or employees or any investment bankers, financial advisors, attorneys, accountants, consultants, agents or other representative retained by PBI or any PBI Subsidiary (it being understood thatcollectively, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company“PBI Representatives”) to, directly or indirectly, : (iA) initiate, encourage, solicit, assist, induce or encourage (including by way of furnishing information), or take any action to facilitate the makingmaking of, submission any inquiry, offer or announcement of any Acquisition Inquiry proposal that constitutes, relates or could reasonably be expected to lead to an Acquisition Proposal; (iiB) furnish or otherwise provide access respond to any information regarding any Acquired Company inquiry relating to any Person in connection with or in response to any Acquisition Inquiry or an Acquisition Proposal; (iiiC) engage recommend or endorse an Acquisition Proposal; (D) participate in any discussions or negotiations with regarding any Person Acquisition Proposal or furnish, or otherwise afford access, to any person (other than HBI) any information or data with respect to PBI or any Acquisition Inquiry PBI Subsidiary or otherwise relating to an Acquisition Proposal; (E) release any Person from, waive any provisions of, or fail to enforce any confidentiality agreement or standstill agreement to which PBI or any PBI Subsidiary is a party; or (ivF) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement, agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement intent or other similar document or Contract relating instrument with respect to any Acquisition Inquiry Proposal or approve or resolve to approve any Acquisition Proposal or any agreement, agreement in principle, letter of intent or similar instrument relating to an Acquisition Proposal.
(b) Upon . Any violation of the execution hereofforegoing restrictions by PBI or any PBI Representative, Stockholder whether or not such PBI Representative is so authorized and whether or not such PBI Representative is purporting to act on behalf of PBI or otherwise, shall be deemed to be a breach of this Agreement by PBI. PBI and each PBI Subsidiary shall, and shall cause each of the PBI Representatives to, immediately cease and cause to be terminated any and all existing activitiesdiscussions, discussions or negotiations negotiations, and communications with any parties (other than Parent and its Affiliates) conducted heretofore Persons with respect to any existing or potential Acquisition Inquiry Proposal. Notwithstanding the foregoing, prior to the approval of the Agreement and the Merger by PBI’s stockholders at the PBI Common Stockholders’ Meeting, PBI may respond to an inquiry, furnish nonpublic information regarding PBI and the PBI Subsidiaries to, or enter into discussions with, any Person in response to an unsolicited Acquisition Proposal that is submitted to PBI by such Person (and not withdrawn) if (A) PBI’s board of directors determines in good faith, after consultation with and having considered the advice of its outside legal counsel and its independent financial advisor, that such Acquisition Proposal constitutes or sale is reasonably likely to lead to a Superior Proposal (as defined below), (B) PBI has not violated any of Shares held by Stockholderthe restrictions set forth in this Section 5.7(a)(ii), (C) PBI’s board of directors determines in good faith, after consultation with and based upon the advice of its outside legal counsel and financial advisor, that such action is required in order for the board of directors to comply with its fiduciary obligations under applicable law, and (D) at least two Business Days prior to furnishing any nonpublic information to, or entering into discussions with, such Person, PBI provides HBI written notice of the identity of such person and of PBI’s intention to furnish nonpublic information to, or enter into discussions with, such Person and PBI receives from such Person an executed confidentiality agreement on terms no more favorable to such Person than the Confidentiality Agreement, which confidentiality agreement shall refrain from engaging not provide such Person with any exclusive right to negotiate with PBI. PBI shall promptly provide to HBI any non-public information regarding PBI or any PBI Subsidiary provided to any other Person that was not previously provided to HBI, such additional information to be provided no later than the date of provision of such information to such other Person. PBI shall promptly (and in any future event within 24 hours) notify HBI in writing if any proposals or offers are received by, any information is requested from, or any negotiations or discussions are sought to be initiated or continued with, PBI or any PBI Representatives, in each case in connection with any Acquisition Proposal, and such notice shall indicate the name of the Person initiating such discussions or negotiations between Stockholder or making such proposal, offer or information request and the material terms and conditions of any Person proposals or offers (and, in the case of written materials relating to such proposal, offer, information request, negotiations or discussion, providing copies of such materials (including e-mails or other than Parent electronic communications). PBI agrees that it shall keep HBI informed, on a current basis, of the status and terms of any such proposal, offer, information request, negotiations or discussions (including any amendments or modifications to such proposal, offer or request). PBI further agrees that it will provide HBI with the opportunity to present its Affiliates) own proposal to the PBI board of directors in response to any such proposal or offer, and negotiate with HBI in good faith with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations)proposal.
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other hand.
Appears in 1 contract
Acquisition Proposals. (a) Stockholder agrees that neither it nor any From the Original Agreement Date until the Closing Date or, if earlier, the termination of its controlled Affiliates (other than this Agreement in accordance with Article X, the Company or its Subsidiaries) shallMurano Parties shall not, and the Murano Parties shall instruct and use reasonable best efforts to cause their representatives acting on their behalf not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, to (i) initiate, encourage, solicit, assist, induce or facilitate the making, submission or announcement of initiate any Acquisition Inquiry or Acquisition Proposal; (ii) furnish or otherwise provide access to any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to, or provide any non-public information or data concerning the Group Companies to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement Person relating to, an Acquisition Inquiry or Acquisition Proposal or afford to any Person access to the business, properties, assets or personnel of the Group Companies in connection with an Acquisition Proposal, (ii) enter into any acquisition agreement, merger agreement in principleor similar definitive agreement, or any letter of intent, memorandum of understandingunderstanding or agreement in principle, term sheetor any other agreement relating to an Acquisition Proposal, acquisition agreement(iii) grant any waiver, option agreement, joint venture agreement, partnership agreement, merger amendment or release under any confidentiality agreement or other similar document or Contract relating to the anti-takeover laws of any Acquisition Inquiry or state, in each case, in connection with an Acquisition Proposal.
, or (biv) Upon otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make an Acquisition Proposal. From and after the execution hereofOriginal Agreement Date, Stockholder the Murano Parties shall, and the Murano Parties shall instruct and use reasonable best efforts to cause their representatives acting on their behalf to, immediately cease and cause to be terminated terminate all existing activities, discussions or and negotiations with any parties Persons that may be ongoing with respect to an Acquisition Proposal (other than Parent HCM and its Affiliates) conducted heretofore representatives). Notwithstanding anything to the contrary in this Agreement, the Murano Parties and their respective representatives shall not be restricted pursuant to the foregoing sentences with respect to any Acquisition Inquiry actions explicitly contemplated by this Agreement or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations)the Ancillary Agreements.
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other hand.
Appears in 1 contract
Sources: Business Combination Agreement (HCM Acquisition Corp)
Acquisition Proposals. (a) Stockholder agrees that neither it nor any Following the execution of its controlled Affiliates this Agreement: (other than i) the Company or its Subsidiaries) shall, and shall not authorize or permit its Representatives (it being understood that, for purposes hereof, ensure that the other Acquired Corporations and each Person that is a Representative of any of the Acquired Corporations, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any Person relating to any Acquisition Proposal or Acquisition Inquiry; and (ii) the Company shall promptly request each Person that has previously executed a confidentiality or similar agreement in connection with such Person’s consideration of an Acquisition Proposal or investment in any Acquired Corporation to return to the Company or destroy any non-public information previously furnished to such Person or to any of such Person’s Representatives by or on behalf of any of the Acquired Corporations.
(b) Subject to Section 5.2(d) and except as permitted by this Section 4.3(b), the Company shall not constitute a Representative of a Stockholder unless such Stockholder (and shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Companypublicly propose to) to, directly or indirectly, and shall use commercially reasonable efforts to ensure that the other Acquired Corporations and each Person that is a Representative of any of the Acquired Corporations do not (and do not publicly propose to) directly or indirectly: (i) solicit, initiate, encourage, solicit, assist, induce knowingly encourage or knowingly facilitate the makingsubmission, submission announcement or announcement making of any Acquisition Inquiry Proposal or Acquisition ProposalInquiry by any Person, or take any action that would reasonably be expected to lead a Person to disclose, announce, commence, submit or otherwise make an Acquisition Proposal or Acquisition Inquiry (provided, however, that supplying non-public information in the ordinary course of business not in connection with or in response to an Acquisition Proposal or Acquisition Inquiry and where not reasonably expected to lead a Person to disclose, announce, commence, submit or otherwise make an Acquisition Proposal or Acquisition Inquiry, shall not be prohibited by this clause “(i)”); (ii) furnish or otherwise provide access to any information regarding any of the Acquired Company Corporations to any Person in connection with or in response to any an Acquisition Inquiry Proposal or Acquisition ProposalInquiry; or (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Inquiry Proposal or Acquisition ProposalInquiry; or provided, however, that, subject to Section 4.3(c) and the other provisions of this Agreement, prior to the adoption of this Agreement by the Requisite Stockholder Approval, the Company may, without being deemed to violate this Section 4.3(b), furnish non-public information regarding the Acquired Corporations to, and enter into and maintain (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or but only during such period of time such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Offer) discussions or negotiations with, any Person in response to an unsolicited, bona fide, written Acquisition Proposal that is submitted to the Company by such Person (and not withdrawn), but only if: (A) such Acquisition Proposal did not result from a breach of any of the provisions set forth in this Section 4.3 or in Section 5.2; (B) the Company Board determines in good faith, after having taken into account the advice of an independent financial advisor and the advice of the Company’s outside legal counsel, that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Offer; and (C) prior to furnishing any such non-public information to, or entering into discussions or negotiations with, such Person, the Company (1) gives Parent written notice of the identity of such Person and of the Company’s intention to furnish non-public information to, or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition Proposal.
(b) Upon the execution hereof, Stockholder shall immediately cease and cause to be terminated all existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholderwith, such Person, and shall refrain (2) receives from engaging in any future discussions or negotiations between Stockholder such Person, and any Person (other than delivers to Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations)a copy of, an executed Acceptable Confidentiality Agreement.
(c) Notwithstanding Prior to furnishing or otherwise permitting the foregoingtransmittal of any non-public information to any Person pursuant to the proviso to Section 4.3(b), the restrictions Company shall (as a condition to furnishing or otherwise permitting the transmittal of such non-public information to such Person) furnish such non-public information to Parent (to the extent such non-public information has not been previously furnished by the Company to Parent).
(d) If the Company, any other Acquired Corporation or any Representative of any Acquired Corporation receives an Acquisition Proposal or Acquisition Inquiry or any request for non-public information at any time following the execution of this Agreement and prior to the Effective Time, then the Company shall promptly (and in no event later than 24 hours after receipt of such Acquisition Proposal, Acquisition Inquiry or request) advise Parent in writing of such Acquisition Proposal, Acquisition Inquiry or request (including the identity of the Person making or submitting such Acquisition Proposal, Acquisition Inquiry or request and the material terms and conditions thereof). Following the execution of this Section 5.2 shall not apply Agreement: (i) the Company shall promptly (and in no event later than 24 hours after receipt) provide Parent with respect copies of all documents and communications received by any Acquired Corporation or any Representative of any Acquired Corporation setting forth the terms and conditions of, modifications or amendments (or proposed modifications or amendments) to, and other material documents and communications relating to, any Acquisition Proposal, Acquisition Inquiry or request for non-public information made by any Person prior to any discussions or negotiations the Effective Time; and (ii) the Company shall keep Parent reasonably fully informed on a reasonably current basis with respect to the transfer status of Shares permitted any material developments in such Acquisition Proposal, Acquisition Inquiry or request and any material modification or proposed modification thereto.
(e) The Company: (i) agrees that it will not, and shall ensure that each other Acquired Corporation will not, at any time, release or permit the release of any Person from, or amend, waive or permit the amendment or waiver of any provision of, any confidentiality or similar agreement or provision to which any of the Acquired Corporations is or becomes a party and (ii) will use commercially reasonable efforts to enforce or cause to be enforced each such agreement or provision at the request of Parent. Other than contained in the Confidentiality Agreement, as of the date of this Agreement, none of the Acquired Corporations are party to any effective “standstill” or similar agreement or provision.
(f) Nothing contained in this Section 4.3 shall prohibit the Company Board from (i) taking and disclosing a position contemplated by Section 2.3Rule 14d-9, Rule 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or (ii) making any disclosure to the Company’s stockholders if, in the good faith judgment of the Company Board or any committee thereof, after consultation with outside legal counsel, the failure to do so would be inconsistent with the directors’ fiduciary duties under applicable Delaware law (it being agreed that the issuance by the Company or the Company Board of a “stop, look and listen” statement pending disclosure of its position, as contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act shall not in and of itself constitute an Adverse Change Recommendation); provided, however, that any disclosure of a position contemplated by Rule 14e-2(a) under the Exchange Act other than (A) a “stop, look and listen” communication limited solely to the type contemplated by Rule 14d-9 under the Exchange Act or (B) any express rejection of any applicable Acquisition Proposal, shall be deemed to be an Adverse Change Recommendation. No change, withdrawal or modification in the recommendation of the Company Board to the Company’s stockholders with respect to this Agreement or the Merger shall change the approval of the Company Board for purposes of causing any discussions between state takeover Legal Requirement (including Section 203 of the StockholderDGCL) or other state Legal Requirement to be inapplicable to the Merger and the other transactions contemplated by this Agreement; provided, on further that this Section 4.3(f) shall not be deemed to permit the one hand, Company Board to take any of the actions referred to in Section 5.2(c) except to the extent permitted by Section 5.2(d) and Section 5.2(e).
(g) The Company acknowledges and agrees that any Affiliate action in violation of any provision set forth in this Section 4.3 or Section 5.2 that is taken by any Representative of Stockholder on any of the other handAcquired Corporations shall be deemed to constitute a breach of such provision by the Company.
Appears in 1 contract
Sources: Merger Agreement (XOOM Corp)
Acquisition Proposals. (a) Stockholder agrees that neither it nor any of its controlled Affiliates (other than the Company or its Subsidiaries) shallSo long as this Agreement remains in effect, except as otherwise expressly permitted by this Agreement, Eureka shall not, and shall not authorize authorize, permit or permit its cause any Eureka Subsidiary and their respective Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, : (i) initiate, encourage, solicit, assist, induce or encourage (including by way of furnishing information), or take any action to facilitate the makingmaking of, submission any inquiry, offer or announcement of any Acquisition Inquiry proposal that constitutes, relates or could reasonably be expected to lead to an Acquisition Proposal; (ii) furnish or otherwise provide access respond to any information regarding any Acquired Company inquiry relating to any Person in connection with or in response to any Acquisition Inquiry or an Acquisition Proposal; (iii) engage recommend or endorse an Acquisition Proposal; (iv) participate in any discussions or negotiations with regarding any Acquisition Proposal or furnish, or otherwise afford access, to any Person (other than NexTier) any information or data with respect to Eureka or any Acquisition Inquiry Eureka Subsidiary or otherwise relating to an Acquisition Proposal; (v) release any Person from, waive any provisions of, or fail to enforce any confidentiality agreement or standstill agreement to which Eureka or any Eureka Subsidiary is a party; or (ivvi) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement, agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement intent or other similar document or Contract relating instrument with respect to any Acquisition Inquiry Proposal or approve or resolve to approve any Acquisition Proposal or any agreement, agreement in principle, letter of intent or similar instrument relating to an Acquisition Proposal. Any violation of the foregoing restrictions by Eureka or any Eureka Representative, whether or not such Eureka Representative is so authorized and whether or not such Eureka Representative is purporting to act on behalf of Eureka or otherwise, shall be deemed to be a breach of this Agreement by Eureka. Eureka and each Eureka Subsidiary shall, and shall cause each of the Eureka Representatives to, immediately cease and cause to be terminated any and all existing discussions, negotiations, and communications with any Persons with respect to any existing or potential Acquisition Proposal.
(b) Upon Notwithstanding the execution hereofforegoing, prior to the approval of the Agreement and the Merger by Eureka’s stockholders at the Eureka Stockholder Meeting, Eureka may respond to an inquiry, furnish nonpublic information regarding Eureka and the Eureka Subsidiaries to, or enter into discussions with, any Person in response to an unsolicited Acquisition Proposal that is submitted to Eureka by such Person (and not withdrawn) if (i) Eureka’s board of directors determines in good faith, after consultation with and having considered the advice of its outside legal counsel and its independent financial advisor, that such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), (ii) Eureka has not violated any of the restrictions set forth in this Section 7.2, (iii) Eureka’s board of directors determines in good faith, after consultation with and based upon the advice of its outside legal counsel and financial advisor, that such action is required in order for the board of directors to comply with its fiduciary obligations under applicable Law, and (iv) at least two business days prior to furnishing any nonpublic information to, or entering into discussions with, such Person, Eureka provides NexTier written notice of the identity of such Person and of Eureka’s intention to furnish nonpublic information to, or enter into discussions with, such Person and Eureka receives from such Person an executed confidentiality agreement on terms no more favorable to such Person than those set forth in the Confidentiality Agreement entered into by NexTier in favor of Eureka on May 21, 2015, which confidentiality agreement shall immediately cease and cause not provide such Person with any exclusive right to negotiate with Eureka. Eureka shall promptly provide to NexTier any non-public information regarding Eureka or any Eureka Subsidiary provided to any other Person that was not previously provided to NexTier, such additional information to be terminated all existing activities, discussions or negotiations with any parties (provided no later than the date of provision of such information to such other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations)Person.
(c) Notwithstanding Eureka shall promptly (and in any event within 24 hours) notify NexTier in writing if any proposals or offers are received by, any information is requested from, or any negotiations or discussions are sought to be initiated or continued with, Eureka or any Eureka Representatives, in each case in connection with any Acquisition Proposal, and such notice shall indicate the foregoingname of the Person initiating such discussions or negotiations or making such proposal, offer or information request and the restrictions material terms and conditions of any proposals or offers (and, in this Section 5.2 the case of written materials relating to such proposal, offer, information request, negotiations or discussion, providing copies of such materials (including e-mails or other electronic communications). Eureka agrees that it shall not apply keep NexTier informed, on a current basis, of the status and terms of any such proposal, offer, information request, negotiations or discussions (i) including any amendments or modifications to such proposal, offer or request). Eureka further agrees that it will provide NexTier with the opportunity to present its own proposal to the Eureka board of directors in response to any such proposal or offer, and negotiate with NexTier in good faith with respect to any discussions such proposal.
(d) For purposes of this Agreement, “Superior Proposal” means any unsolicited, bona fide written proposal (or negotiations its most recently amended or modified terms, if amended or modified) made by a third party to consummate an Acquisition Proposal on terms that the Eureka board of directors determines in its good faith judgment, after consultation with and having considered the advice of Eureka’s outside legal counsel and financial advisor: (i) would, if consummated, result in consideration that is more favorable to the stockholders of Eureka than the transactions contemplated by this Agreement (taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the proposal), (ii) is not conditioned on obtaining financing (and with respect to which Eureka has reasonably assured itself of such Person’s ability to fully finance its Acquisition Proposal), (iii) would, if consummated, result in the transfer acquisition of Shares permitted by Section 2.3more than 50% of the issued and outstanding shares of Eureka Common Stock or all or substantially all of the assets and liabilities of Eureka and the Eureka Subsidiaries on a consolidated basis, or and (iiiv) with respect is reasonably likely to any discussions between the Stockholder, be completed on the one handterms proposed, in each case taking into account all legal, financial, regulatory and any Affiliate or Representative other aspects of Stockholder on the other handproposal.
Appears in 1 contract
Acquisition Proposals. (a) Stockholder agrees that neither it nor any of its controlled Affiliates (other than the Company or its Subsidiaries) shallSo long as this Agreement remains in effect, except as otherwise expressly permitted by this Agreement, DCB shall not, and it shall not authorize authorize, permit or permit its cause any DCB Subsidiary and their respective Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, : (iA) initiate, encourage, solicit, assist, induce or encourage (including by way of furnishing information), or take any action to facilitate the makingmaking of, submission any inquiry, offer or announcement of any Acquisition Inquiry proposal that constitutes, relates or could reasonably be expected to lead to an Acquisition Proposal; (iiB) furnish or otherwise provide access respond to any information regarding any Acquired Company inquiry relating to any Person in connection with or in response to any Acquisition Inquiry or an Acquisition Proposal; (iiiC) engage recommend or endorse an Acquisition Proposal; (D) participate in any discussions or negotiations regarding any Acquisition Proposal or furnish, or otherwise afford access, to any Person (other than OLB) any information or data with respect to DCB or any DCB Subsidiary or otherwise relating to an Acquisition Proposal; (E) release any Person from, waive any provisions of, or fail to enforce any confidentiality agreement or standstill agreement to which DCB or any DCB Subsidiary is a party; or (F) enter into any agreement, agreement in principle, letter of intent or similar instrument, including any exclusivity agreement, with respect to any Acquisition Proposal or approve or resolve to approve any Acquisition Proposal or any agreement, agreement in principle, letter of intent or similar instrument relating to an Acquisition Proposal. Any violation of the foregoing restrictions by DCB or any of its Representatives, whether or not such Representative is so authorized and whether or not such Representative is purporting to act on behalf of DCB or otherwise, shall be deemed to be a breach of this Agreement by DCB. DCB and each DCB Subsidiary shall, and shall cause each of its Representatives to, immediately cease and cause to be terminated any and all existing discussions, negotiations, and communications with any Person with respect to any Acquisition Inquiry existing or potential Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt . Notwithstanding the foregoing, prior to make or implement the approval of the Agreement and the Merger by DCB’s stockholders at the DCB Common Stockholders’ Meeting, DCB may respond to an Acquisition Inquiry or Acquisition Proposal inquiry, furnish nonpublic information regarding itself and the DCB Subsidiaries to, or enter into discussions with, any Person in response to an unsolicited Acquisition Proposal that is submitted to DCB by such Person (and not withdrawn) if: (A) DCB’s board of directors determines in good faith, after consultation with and having considered the advice of its outside legal counsel and the advice of RP Financial, LC., that such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal (as defined below); (B) DCB has not violated any of the restrictions set forth in this Section 5.7(a)(ii); (C) DCB’s board of directors determines in good faith, after consultation with and based upon the advice of its outside legal counsel and the advice of RP Financial, LC., that such action is required in order for the board of directors to comply with its fiduciary obligations under applicable Law; and (D) at least two Business Days prior to furnishing any nonpublic information to, or entering into discussions with, such Person, DCB provides OLB with written notice of the identity of such Person and of DCB’s intention to furnish nonpublic information to, or enter into discussions with, such Person and DCB receives from such Person an executed confidentiality agreement in principleon terms no more favorable to such Person than the Confidentiality Agreement, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger which confidentiality agreement shall not provide such Person with any exclusive right to negotiate with DCB. DCB shall promptly provide to OLB any non-public information regarding DCB or other similar document or Contract relating any DCB Subsidiary provided to any Acquisition Inquiry other Person that was not previously provided to OLB, such additional information to be provided no later than the date of provision of such information to such other Person. DCB shall promptly (and in any event within 24 hours) notify OLB in writing if any proposals or offers are received by, any information is requested from, or any negotiations or discussions are sought to be initiated or continued with, DCB, any DCB Subsidiary or any of their Representatives, in each case in connection with any Acquisition Proposal.
(b) Upon , and such notice shall indicate the execution hereof, Stockholder shall immediately cease and cause to be terminated all existing activities, name of the Person initiating such discussions or negotiations or making such proposal, offer or information request and the material terms and conditions of any proposals or offers (and, in the case of written materials relating to such proposal, offer, information request, negotiations or discussion, providing copies of such materials (including e-mails or other electronic communications)). DCB agrees that it shall keep OLB informed, on a current basis, of the status and terms of any such proposal, offer, information request, negotiations or discussions (including any amendments or modifications to such proposal, offer or request). DCB further agrees that it will provide OLB with the opportunity to present its own proposal to the DCB board of directors in response to any parties (other than Parent such proposal or offer and its Affiliates) conducted heretofore negotiate with OLB in good faith with respect to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations)proposal.
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other hand.
Appears in 1 contract
Acquisition Proposals. (a) Stockholder agrees that neither TBFI shall not, nor shall it nor --------------------- authorize any of its controlled Affiliates (other than the Company or its Subsidiaries) shall, and shall not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of, or any investment banker, attorney or other advisor or representative of the Company) TBFI to, directly or indirectly, indirectly (i) initiate, encourage, solicit, assist, induce initiate or facilitate encourage the making, submission or announcement of any Acquisition Inquiry Proposal or Acquisition Proposal; (ii) furnish or otherwise provide access to any information regarding any Acquired Company to any Person participate in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition Proposal.
(b) Upon the execution hereof, Stockholder shall immediately cease and cause to be terminated all existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations regarding, or furnish to any Person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal, and TBFI shall promptly terminate any such discussions with any Person that has expressed or expresses an interest in acquiring Baird Quality Bond or negotiations pending at the date of this Agreement provided, however, TBFI or any officer, director or employee ------------------ of, or any investment banker, attorney or other adviser or representative of TBFI may, following the receipt of an Acquisition Proposal that the Board of Directors of TBFI determines in good faith, after consultation with outside counsel, would permit the Board of Directors to take any of the actions referred to in Section 5.10, participate in negotiations regarding such Acquisition ------------ Proposal. TBFI shall promptly notify AFG, orally and in writing, of the receipt by it after the date hereof of any Acquisition Proposal or any inquiry from a potential acquiror of Baird Quality Bond which could reasonably be expected to lead to any Acquisition Proposal, the material terms and conditions of such Acquisition Proposal or inquiry and the identity of the Person making any such Acquisition Proposal or inquiry, except to the extent TBFI's Board of Directors concludes, after consultations with outside counsel, that the disclosure of any such information would be a breach of a duty of confidentiality imposed on TBFI with respect to such information. Subject to the transfer foregoing, TBFI shall keep AFG informed of Shares permitted by Section 2.3, the status and details of any such Acquisition Proposal or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other handinquiry.
Appears in 1 contract
Acquisition Proposals. (a) Stockholder agrees that neither it nor any of its controlled Affiliates (other than Until this Agreement has been terminated in accordance with Section 7.1, the Company or its Subsidiaries) shallshall not, and shall not authorize or permit any of its Representatives Affiliates to, and shall cause its officers, directors, employees, consultants, representatives and other agents, including investment bankers, attorneys, accountants and other advisors (it being understood thatcollectively, for purposes hereofthe “Representatives”), a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, (i1) initiatesolicit or initiate the making of, encourage, solicit, assist, induce or take any other action to knowingly facilitate any inquiries or the making, submission or announcement making of any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Inquiry Proposal (including, without limitation, taking any action to make the provisions of any “moratorium”, “control share”, “fair price”, “affiliate transaction”, “business combination” or other antitakeover laws and regulations of any state, including, without limitation, the provisions of Article 14 and Article 14.1 of the VSCA inapplicable to any transactions contemplated by an Acquisition Proposal; ), (ii2) furnish or otherwise provide access to participate in any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage way in discussions or negotiations with with, or furnish or disclose any Person with respect to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principlenonpublic information to, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition Proposal.
(b) Upon the execution hereof, Stockholder shall immediately cease and cause to be terminated all existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent or any of its Representatives) in connection with any Acquisition Proposal, (3) effect a Change in the Company Recommendation, (4) approve or recommend, or publicly announce it is considering approving or recommending, any Acquisition Proposal or (5) enter into any agreement, letter of intent, agreement-in-principle or acquisition agreement relating to any Acquisition Proposal. Notwithstanding the foregoing, at any time prior to the time that the Company Requisite Shareholder Vote is obtained, the Company and its AffiliatesRepresentatives may:
(i) participate in discussions or negotiations with, or furnish or disclose nonpublic information to, any Person or any Person’s Representatives in response to an unsolicited, bona fide and written Acquisition Proposal that is submitted to the Company by such Person after the date of this Agreement and prior to the time that the Company Requisite Shareholder Vote is obtained if and so long as (A) none of the Company, any of its Affiliates or any of the Representatives of the Company or any of its Affiliates has solicited such Acquisition Proposal or otherwise violated any of the provisions of Section 5.5(a)(1) through (5) with respect to such Acquisition Proposal, (B) a majority of the members of the Board of Directors of the Company determines in good faith, after consultation with a nationally recognized financial advisor, that such Acquisition Proposal constitutes or is reasonably likely to constitute a Superior Proposal, (C) a majority of the members of the Board of Directors of the Company determines in good faith, after consultation with its outside legal counsel, that failing to take such action would be inconsistent with their fiduciary duties to the Company and the Company’s shareholders under applicable Law (including, without limitation, their obligations under VSCA §13.1-690A), (D) prior to participating in discussions or negotiations with, or furnishing or disclosing any sale nonpublic information to, such Person, the Company provides Parent with written notice of the identity of such Person and of the Company’s intention to participate in discussions or negotiations with, or to furnish or disclose nonpublic information to, such Person, (E) prior to participating in discussions or negotiations with, or furnishing or disclosing any Shares held nonpublic information to, such Person, the Company receives from such Person an executed confidentiality agreement containing terms no less restrictive upon such Person, in any respect, than the terms applicable to Parent under the Confidentiality Agreement, which confidentiality agreement shall not provide such Person with any exclusive right to negotiate with the Company or have the effect of prohibiting the Company from satisfying its obligations under this Agreement, and (F) prior to furnishing or disclosing any nonpublic information to such Person, the Company furnishes such information to Parent (to the extent such information has not been previously delivered or made available by Stockholder the Company to Parent);
(ii) approve or recommend, or enter into (and, in connection therewith, effect a Change in the Company Recommendation), a definitive agreement with respect to an unsolicited, bona fide written Acquisition Proposal that is submitted to the Company after the date of this Agreement and prior to the time that the Company Requisite Shareholder Vote is obtained if and so long as (A) none of the Company, any of its Affiliates or any of the Representatives of the Company or any of its Affiliates has solicited such Acquisition Proposal or otherwise violated any of the provisions of this Section 5.5, (B) the Company provides Parent with written notice indicating that the Company, acting in good faith, believes that the Acquisition Proposal is reasonably likely to constitute a Superior Proposal, (C) during the three Business Day period after the Company provides Parent with the written notice described in clause (B) above, the Company shall cause its financial and legal advisors to negotiate in good faith with Parent (to the extent Parent wishes to negotiate) in an effort to make such adjustments to the terms and conditions of this Agreement such that the Acquisition Proposal would not constitute a Superior Proposal (it is understood and agreed that, in the event such Acquisition Proposal does not constitute a Superior Proposal after taking into account such negotiations and adjustments, the Company would then proceed with the transactions contemplated hereby on such adjusted terms), (D) notwithstanding the negotiations and adjustments pursuant to clause (C) above but after taking into account the results of such negotiations and adjustments, the Board of Directors of the Company makes the determination necessary for such Acquisition Proposal to constitute a Superior Proposal at least three Business Days after the Company provides Parent with the written notice referred to in clause (B) above, (E) notwithstanding the negotiations and adjustments pursuant to clause (C) above but after taking into account the results of such negotiations and adjustments, at least three Business Days after the Company provides Parent with the written notice referred to in clause (B) above, a majority of the members of the Board of Directors of the Company determine in good faith, after consultation with its outside legal counsel, that failing to approve or recommend or enter into a definitive agreement with respect to such Acquisition Proposal would be inconsistent with their fiduciary duties to the Company and the Company’s shareholders under applicable Law (including, without limitation, their obligations under VSCA §13.1-690A) and that such Acquisition Proposal remains a Superior Proposal and (F) not later than the earlier of the approval or recommendation of, or the execution and delivery of a definitive agreement with respect to, any such Superior Proposal, the Company (I) terminates this Agreement pursuant to Section 7.1(h) and (II) makes the payment of the Termination Fee and the Termination Expenses required to be made pursuant to Section 7.2(b); and
(iii) effect a change in the Company Recommendation (other than in connection with an Acquisition Proposal) prior to state the time that Stockholder the Company Requisite Shareholder Vote is currently not permitted obtained if a majority of the members of the Board of Directors of the Company determines in good faith, after consultation with its outside legal counsel, that failure to engage in such discussions or negotiationsdo so would constitute a breach of their fiduciary duties to the Company and the Company’s shareholders under applicable Law (including, without limitation, their obligations under VSCA §13.1-690A).
(cb) Notwithstanding In addition to the foregoingobligations of the Company set forth in Section 5.5(a), within one Business Day of the receipt thereof, the restrictions in this Section 5.2 Company shall not apply provide Parent with written notice of (i) with respect to any request for information, any Acquisition Proposal or any inquiry, proposal, discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3any Acquisition Proposal, or (ii) the material terms and conditions of such request, Acquisition Proposal, inquiry, proposal, discussions or negotiations and (iii) the identity of the Person making any such Acquisition Proposal or such request, inquiry or proposal or with whom such discussions or negotiations are taking place, and the Company shall promptly provide Parent with copies of any material written materials received by the Company in connection with any of the foregoing. The Company shall keep Parent informed of the status and general progress (including amendments or proposed amendments to any material terms) of any such request or Acquisition Proposal and keep Parent informed as to the material details of any information requested of or provided by the Company and as to the material details of all discussions or negotiations. Without limiting the Company’s obligations under Section 5.5(a), the Company shall provide Parent with notice prior to any meeting of the Board of Directors of the Company at which the Board of Directors is reasonably expected to consider any material action with respect to an Acquisition Proposal that is on the agenda for such meeting.
(c) The Company shall, and shall cause its Affiliates and the Representatives of the Company and its Affiliates to, immediately cease all discussions or negotiations, if any, with any Person other than Parent and its Subsidiaries that may be ongoing as of the date of this Agreement with respect to any discussions between Acquisition Proposal. The Company shall promptly request each Person who has heretofore executed a confidentiality agreement in connection with its consideration of acquiring the StockholderCompany or any portion thereof (including any of its Subsidiaries) to return or destroy all nonpublic information heretofore furnished to such Person by or on behalf of the Company.
(d) Nothing contained in this Section 5.5 shall prohibit the Company from complying with Rule 14e-2 and Rule 14d-9 promulgated under the Exchange Act with respect to an Acquisition Proposal, on provided that such Rules shall in no way eliminate or modify the one handeffect that any action pursuant to such Rules would otherwise have under this Agreement.
(e) Any violation of this Section 5.5 by the Company’s Affiliates or the Representatives of the Company shall be deemed to be a breach of this Agreement by the Company, and any whether or not such Affiliate or Representative is authorized to act and whether or not such Affiliate or Representative is purporting to act on behalf of Stockholder on the other handCompany.
Appears in 1 contract
Sources: Merger Agreement (Cenveo, Inc)
Acquisition Proposals. From the date hereof until the Closing Date or, if earlier, the termination of this Agreement in accordance with Article X, the Members shall not, and shall cause the Company and its Subsidiaries not to, and shall instruct and cause the Company’s Subsidiaries, Affiliates and their respective representatives, not to (a) Stockholder agrees that neither it nor any of its controlled Affiliates (other than the Company or its Subsidiaries) shall, and shall not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, (i) initiate, encourage, solicit, assist, induce initiate or facilitate the making, submission or announcement of knowingly participate in any Acquisition Inquiry or Acquisition Proposal; (ii) furnish or otherwise provide access to any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to, or knowingly provide any non-public information or data concerning the Company or any of the Company’s Subsidiaries to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement Person relating to, an Acquisition Inquiry or Acquisition Proposal or knowingly afford to any Person access to the business, properties, assets or personnel of the Company or any of the Company’s Subsidiaries in connection with an Acquisition Proposal, (b) enter into any acquisition agreement, merger agreement in principleor similar definitive agreement, or any letter of intent, memorandum of understandingunderstanding or agreement in principle, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger or any other agreement or other similar document or Contract relating to any Acquisition Inquiry or an Acquisition Proposal.
, (bc) Upon grant any waiver, amendment or release under any confidentiality agreement executed in connection with an Acquisition Proposal or the execution anti-takeover Laws of any state, or (d) otherwise knowingly facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make an Acquisition Proposal. From and after the date hereof, Stockholder the Members shall, and shall cause the Company to use its reasonable best efforts to instruct and cause its officers and directors, representatives, Subsidiaries and Affiliates and their respective representatives to immediately cease and cause to be terminated terminate all existing activities, discussions or and negotiations with any parties (other than Parent and its Affiliates) conducted heretofore Persons that may be ongoing with respect to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent Acquiror and its Affiliates) representatives). From and after the date hereof, the Company shall promptly notify Acquiror if any Person makes any written proposal, offer or inquiry with respect to any sale an Acquisition Proposal and provide Acquiror with a description of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect material terms and conditions thereof to the transfer extent that such disclosure would not result in breach of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on Company’s confidentiality obligations that are in existence as of the one hand, and any Affiliate or Representative of Stockholder on the other handdate hereof.
Appears in 1 contract
Sources: Equity Purchase Agreement (Waldencast Acquisition Corp.)
Acquisition Proposals. (a) Stockholder agrees that neither it nor Subject to the remainder of this Section 7.5, none of the Company or any of its controlled Affiliates Subsidiaries shall (whether directly or indirectly through Affiliates, directors, officers, employees, Representatives or other than intermediaries), nor shall (directly or indirectly) the Company authorize any of its or its Subsidiaries’ officers, directors, Representatives or other intermediaries or Subsidiaries to: (i) shallsolicit, and shall not authorize initiate or permit its Representatives knowingly facilitate (it being understood that, and agreed that ministerial acts that are not otherwise prohibited by this Section 7.5 (such as answering unsolicited phone calls) shall not be deemed to “facilitate” for purposes hereofof this Section 7.5) the submission of inquiries, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged proposals or directed such offers from any Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company(other than Parent) to, directly or indirectly, (i) initiate, encourage, solicit, assist, induce or facilitate the making, submission or announcement of relating to any Acquisition Inquiry Proposal, or agree to or recommend any Acquisition Proposal; (ii) furnish or otherwise provide access enter into any agreement (x) to any information regarding any Acquired Company to any Person in connection with or in response to consummate any Acquisition Inquiry Proposal, (y) to approve any Acquisition Proposal or Acquisition Proposal(z) requiring it to abandon, terminate or fail to consummate the Merger; (iii) engage enter into or participate in any discussions or negotiations in connection with any Person Acquisition Proposal or inquiry with respect to any Acquisition Inquiry Proposal, or furnish any non-public information with respect to its business, properties or assets in connection with any Acquisition Proposal; (iv) waive, terminate, modify or release any Person (other than Parent, Merger Sub and their respective Affiliates) from any provision of or grant any permission, waiver or request under any “standstill” or similar agreement or obligation, unless the Company’s Board of Directors has determined in good faith after consultation with outside legal counsel that failure to take such action would be inconsistent with its fiduciary duties under applicable Law, or (v) agree to resolve to take, or take, any of the actions prohibited by clause (i), (ii), (iii) or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition Proposal.
(b) Upon the execution hereof, Stockholder this sentence. The Company shall immediately cease cease, and cause its Representatives and other intermediaries to be terminated immediately cease, any and all existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry or an Acquisition Proposal and shall immediately terminate online data room access to all such parties and their Representatives. For purposes of this Section 7.5, the term “Person” means any person, corporation, entity or sale “group,” as defined in Section 13(d) of Shares held by Stockholderthe Exchange Act, other than, with respect to the Company, Parent or any Subsidiary of Parent. Notwithstanding the foregoing, the Company may, following the receipt of an Acquisition Proposal, contact the Person that has made such Acquisition Proposal to (i) clarify and understand the terms and conditions thereof solely to facilitate the Board of Directors of the Company’s determination of whether such Acquisition Proposal constitutes or would reasonably be expected to lead to, a Superior Proposal, and shall refrain from engaging (ii) inform such Person of the existence of the provisions of this Section 7.5.
(b) Notwithstanding anything to the contrary in any future this Section 7.5, the Company, directly or indirectly through Affiliates, directors, officers, employees, Representatives or other intermediaries, may, prior to the receipt of the Required Company Vote, (i) engage in negotiations or discussions or negotiations between Stockholder and with any Person (other than Parent and its AffiliatesRepresentatives and intermediaries) that has made an unsolicited bona fide written Acquisition Proposal not resulting from or arising out of a breach of Section 7.5(a), and/or (ii) furnish to such Person information relating to the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement and to the extent nonpublic information that has not been made available to Parent is made available to such Person, make available or furnish such nonpublic information to Parent promptly (and in any event within 24 hours) following the time it is provided to such Person, in the case of each of clauses (i) or (ii), if, and only if, prior to taking such particular action, the Board of Directors of the Company has determined in good faith after consultation with respect its financial advisors and outside legal counsel that such Acquisition Proposal constitutes or would reasonably be expected to any sale of any Shares held by Stockholder (other than lead to, a Superior Proposal, and that the failure to state that Stockholder is currently not permitted to engage in take such discussions or negotiations)action would be inconsistent with its fiduciary duties under applicable Law.
(c) Notwithstanding the foregoing, the restrictions anything in this Section 5.2 7.5 to the contrary, at any time prior to the receipt of the Required Company Vote, the Company’s Board of Directors may (x) withdraw, modify or amend in any manner adverse to Parent its approval or recommendation of this Agreement or the Merger or recommend an Acquisition Proposal, or enter into a Company Acquisition Agreement or resolve or agree to take any of the foregoing actions (a “Company Adverse Recommendation Change”) (i) in response to an Intervening Event, or (ii) following receipt of an unsolicited bona fide written Acquisition Proposal that did not result from a breach of this Section 7.5 and which the Company’s Board of Directors determines in good faith, in consultation with its financial advisors and outside legal counsel constitutes a Superior Proposal or would reasonably be expected to lead to a Superior Proposal, in the case of each of clauses (i) and (ii), if and only if, the Company’s Board of Directors has determined in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law and subject to the Company’s compliance with Section 7.5(d) or (y) following receipt of an unsolicited bona fide written Acquisition Proposal that did not result from a breach of this Section 7.5 and which the Company’s Board of Directors determines in good faith, in consultation with its financial advisors and outside legal counsel constitutes a Superior Proposal or would reasonably be expected to lead to a Superior Proposal, terminate this Agreement in accordance with the provisions of Section 9.1(f) and enter into a definitive acquisition agreement, merger agreement or similar definitive agreement (a “Company Acquisition Agreement” (for the avoidance of doubt an Acceptable Confidentiality Agreement shall not apply (iconstitute a Company Acquisition Agreement)) with respect to such Superior Proposal, if, and only if, the Company’s Board of Directors has determined in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law and the Company complies with Section 7.5(d) and, concurrently with entering into a Company Acquisition Agreement with respect to such Superior Proposal, the Company pays the Termination Fee in accordance with Section 9.2(c).
(d) Prior to the Company taking any action permitted (i) under Section 7.5(c)(x)(i), the Company shall (A) provide Parent with at least four (4) Business Days’ prior written notice advising Parent it intends to effect a Company Adverse Recommendation Change and specifying, in reasonable detail, the reasons therefor and all material information with respect to such Intervening Event (including in relation to all developments related thereto), and (B) if requested by Parent, during such four (4) Business Day period, negotiate in good faith with Parent (to the extent Parent desires to negotiate) to make such adjustments to the terms and conditions of this Agreement such that the Company’s Board of Directors would determine in good faith, after consultation with its financial advisors and outside legal counsel, that the failure of the Company’s Board of Directors to make a Company Adverse Recommendation Change would not be inconsistent with its fiduciary duties under applicable Law, or (ii) under Section 7.5(c)(x)(ii) or Section 7.5(c)(y) the Company shall provide Parent with at least four (4) Business Days’ prior written notice (it being understood and agreed that any material amendment to the amount or form of consideration payable in connection with the applicable Acquisition Proposal 52 shall require a new notice and a two (2) Business Day period) advising Parent that the Company’s Board of Directors intends to take such action, specifying the material terms and conditions of the Superior Proposal and that the Company shall, if requested by Parent, during such four (4) Business Day period (or two (2) Business Day period, if applicable), negotiate with Parent (to the extent Parent desires to negotiate) to make such adjustments to the terms and conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal.
(e) The Company shall notify Parent promptly (but in any event within 24 hours) after receipt of any bona fide Acquisition Proposal and the material terms and conditions of any such Acquisition Proposal. The Company shall keep Parent reasonably informed of the status and material details (including any amendments or proposed amendments) of any such Acquisition Proposal and keep Parent reasonably informed as to the material details of all discussions or negotiations with respect to any such Acquisition Proposal (in each case in a manner that is not unduly disruptive of the transfer Company’s ability to conduct good faith discussions in accordance with this Section 7.5 with the party making such Acquisition Proposal and its Representatives, advisors and agents) and shall provide Parent within 24 hours after receipt thereof all copies of Shares permitted any other documentation, including any drafts of a Company Acquisition Agreement with respect to such Acquisition Proposal, material to understanding such Acquisition Proposal (as determined by the Company) received by the Company from the Person (or from any Representatives, advisors or agents of such Person) making such Acquisition Proposal or with whom such discussions or negotiations are taking place; provided that, for the sake of clarity, it is understood and agreed that all such information and communications shall be subject to the Confidentiality Agreement.
(f) Nothing contained in this Section 2.37.5 or elsewhere in this Agreement shall prohibit the Company or the Company’s Board of Directors, directly or indirectly through its Representatives, from complying with its disclosure obligations under applicable Law with regard to an Acquisition Proposal, including taking and disclosing to the Company’s Shareholders a position with respect to a tender or exchange offer by a third party pursuant to Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act (or any similar communication to the Company’s Shareholders), and none of the foregoing shall constitute a Company Adverse Recommendation Change provided that any such disclosure (other than a “stop, look and listen” communication or other similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, or an express rejection of the Acquisition Proposal or a reaffirmation of the Company Board Recommendation) shall be deemed to be a Company Adverse Recommendation Change if the Company Board fails to expressly and publicly reaffirm the Company Board Recommendation within five (ii5) Business Days following any request by Parent in response to such Company disclosure (it being agreed that Parent may only make one (1) request with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other handsingle such disclosure).
Appears in 1 contract
Sources: Merger Agreement
Acquisition Proposals. (a) Stockholder agrees that neither it nor any of its controlled Affiliates (other than During the Pre-Closing Period, the Company or its Subsidiaries) shallshall not, and shall cause each Company Subsidiary and its and their respective stockholders, Affiliates, Representatives and other agents not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, (i) initiate, encourage, solicit, assist, induce or facilitate the making, submission or announcement of any Acquisition Inquiry or Acquisition Proposal; (ii) furnish or otherwise provide access to any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person except with respect to Parent and its Affiliates), (a) solicit, initiate or encourage any Acquisition Inquiry inquiries, offers or proposals from any Person which constitute, or would reasonably be expected to lead to, the sale or transfer of any of the Company’s securities or all or a material portion of the Company’s assets, whether such transaction would take the form of a sale of capital stock, merger, liquidation, dissolution, reorganization, recapitalization, consolidation, sale of assets or otherwise (an “Acquisition Proposal; ”), or (ivb) otherwise facilitate negotiate with any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal other Person or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement intent or other similar document agreement relating to or Contract contemplating an Acquisition Proposal or disclose to any Person any confidential information concerning Acquired Company or its businesses or assets. The Company further agrees that it shall promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal) notify Parent of the receipt of any Acquisition Proposal (which notice shall be provided orally and in writing and shall identify the Person making such Acquisition Proposal and set forth the material terms thereof), or any request for non-public information relating to any Acquisition Inquiry Acquired Company or for access to the properties, books or records of any Acquired Company by any Person that has made, or to the Knowledge of the Company intends to make, an Acquisition Proposal.
(b) Upon . Promptly following the execution hereofof the Original Agreement, Stockholder shall the Company (i) ceased, and caused each Company Subsidiary, and its and their respective stockholders, Affiliates, Representatives and other agents to, immediately cease and cause to be terminated all existing activitiesdiscussions and negotiations, discussions or negotiations if any, that had taken place prior to the Original Agreement Date with any parties Person (other than Parent and its AffiliatesParent) conducted heretofore with respect to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, Proposal; and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (ii) requested that all Persons (other than Parent and its AffiliatesParent) who executed a confidentiality, non-disclosure or other similar agreement in connection with respect to any sale the consideration of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding the foregoinga possible Acquisition Proposal, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect return to the transfer of Shares permitted by Section 2.3Company, or (ii) with respect destroy, all confidential information theretofore furnished to any discussions between such Person by or on behalf of the StockholderCompany, on as promptly as practicable, subject to the one hand, and any Affiliate or Representative terms of Stockholder on the other handsuch agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger
Acquisition Proposals. (a) Stockholder agrees that neither As of the date hereof, BANK shall not, nor shall it nor permit any of its controlled Affiliates (other than the Company Subsidiaries to, nor shall it or its Subsidiaries) shall, and shall not Subsidiaries authorize or permit its Representatives (it being understood thatany of their respective officers, for purposes hereofdirectors, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged employees, representatives or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) agents to, directly or indirectly, (i) initiate, encourage, solicit, assistinitiate or knowingly encourage (including by way of furnishing non-public information) any inquiries regarding, induce or facilitate the making, submission or announcement making of any Acquisition Inquiry or proposal which constitutes, any Acquisition Proposal, (ii) enter into any letter of intent or agreement related to any Acquisition Proposal other than a confidentiality agreement (each, an “Acquisition Agreement”) or (iii) participate in any discussions or negotiations regarding, or take any other action knowingly to facilitate any inquiries or the making of any proposal that constitutes, or that would reasonably be expected to lead to, any Acquisition Proposal; provided, however, that if, at any time prior to the BANK Stockholders’ Meeting, and without any breach of the terms of this Section 7.6(a), BANK receives an Acquisition Proposal from any Person that in the good faith judgment of the BANK Board (after receiving the advice of its legal and financial advisors (who shall be a nationally recognized investment banking firm)) is, or is reasonably likely to lead to the delivery of, a Superior Proposal, BANK may (x) furnish information (including non-public information) with respect to BANK to any such Person pursuant to a confidentiality agreement containing confidentiality provisions no more favorable to such Person than those in the Confidentiality Agreement between TIB and BANK dated January 23, 2006, and (y) participate in negotiations with such Person regarding such Acquisition Proposal. Neither the BANK Board nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to TIB, the approval or recommendation by the BANK Board, or such committee thereof, of the Merger or this Agreement; (ii) furnish approve or otherwise provide access recommend, or propose to approve or recommend, any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Inquiry or Acquisition Proposal; or (iviii) otherwise facilitate authorize or permit BANK or any effort or attempt of its Subsidiaries to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement Acquisition Agreement. Notwithstanding the foregoing, upon satisfaction of the notice, matching, payment and other requirements and procedures of Section 10.1(k) of this Agreement, the BANK Board may approve or recommend (and, in principleconnection therewith, letter withdraw or modify its approval or recommendation of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement this Agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition the Merger) a Superior Proposal.
(b) Upon the execution hereofBANK agrees that it and its Subsidiaries shall, Stockholder and BANK shall direct its and its Subsidiaries’ respective officers, directors, employees, representatives and agents to, immediately cease and cause to be terminated all existing any activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore Persons with respect to any Acquisition Inquiry Proposal. BANK agrees that it will notify TIB promptly (but no later than 24 hours) if, to BANK’s Knowledge, any Acquisition Proposal is received by, any information is requested from, or any discussions or negotiations relating to an Acquisition Proposal are sought to be initiated or continued with, BANK, its Subsidiaries, or their officers, directors, employees, representatives or agents. The notice shall indicate the name of the Person making such Acquisition Proposal or sale taking such action and the material terms and conditions of Shares held by Stockholderany proposals or offers, and thereafter BANK shall refrain from engaging in any future discussions or negotiations between Stockholder keep TIB informed, on a current basis, of the status and any Person (other than Parent and its Affiliates) with respect to any sale terms of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such proposals or offers and the status of any such discussions or negotiations). BANK also agrees that it will promptly request each Person that has heretofore executed a confidentiality agreement in connection with any Acquisition Proposal to return or destroy all confidential information heretofore furnished to such Person by or on behalf of it or any of its Subsidiaries.
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other hand.
Appears in 1 contract
Acquisition Proposals. (a) Stockholder agrees that From the date of this Agreement until the Closing Date or, if earlier, the termination of this Agreement, neither it the Acquiror nor any of its controlled Affiliates (other than the Company or its Subsidiaries) shallAcquiror Principal Shareholder will, and shall not neither the Acquiror nor the Acquiror Principal Shareholder will authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative the any representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged Acquiror or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) Acquiror Principal Shareholder to, directly or indirectly, : (i) solicit, initiate, knowingly encourage, solicit, assist, induce or facilitate the making, submission or announcement of any Acquisition Inquiry Competing Transaction Proposal from any Person (other than Acquiree or Acquisition the Acquiree Shareholders, a “Third Party”) or take any action that could reasonably be expected to lead to a Competing Transaction Proposal; , (ii) furnish or otherwise provide access to any information regarding any Acquired Company the Acquiror to any Person Third Party in connection with or in response to any Acquisition Inquiry a Competing Transaction Proposal or Acquisition Proposal; an inquiry or indication of interest, (iii) engage in or continue any discussions or negotiations with any Person Third Party with respect to any Acquisition Inquiry or Acquisition Competing Transaction Proposal; or , (iv) otherwise facilitate approve, endorse or recommend any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Competing Transaction Proposal or (v) enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement intent or other similar document or any Contract contemplating or otherwise relating to any Acquisition Inquiry or Acquisition Competing Transaction Proposal.
(b) Upon Concurrently with the execution hereofof this Agreement, Stockholder Acquiror and the Acquiror Principal Shareholder shall (i) immediately cease and cause to be terminated all any existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect Person that relate to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or Competing Transaction Proposal; (ii) as soon as practicable request each Person that has executed, within twelve (12) months prior to the date of this Agreement, a confidentiality agreement in connection with respect its consideration of a possible Competing Transaction Proposal to return or destroy all confidential information relating to the Acquiror heretofore furnished to such Person by or on behalf of the Acquiror Principal Shareholder or the Acquiror, subject to whatever rights, if any, that such Person has to retain any discussions such information or avoid any demand for its return or destruction pursuant to the terms of the confidentiality agreement between such Person and the StockholderAcquiror Principal Shareholder or the Acquiror; and (iii) cause any physical or virtual data room containing any such information to no longer be accessible to or by any Person other than Acquiree, on the one hand, Acquiree Shareholders and any Affiliate or Representative of Stockholder on the other handtheir respective representatives.
Appears in 1 contract
Sources: Share Exchange Agreement (MORTGAGEBROKERS.COM Holdings, Inc.)
Acquisition Proposals. (a) Stockholder agrees that neither Any offer or proposal by any Person or group concerning (i) any tender or exchange offer, (ii) proposal for a merger, share exchange, recapitalization, consolidation or other business combination involving the Company or (iii) any proposal or offer to acquire in any manner, directly or indirectly, a significant equity interest in, or a substantial portion of the assets of, the Company, other than pursuant to the transactions contemplated by this Agreement, is hereby defined as an "Acquisition Proposal."
(b) Except as permitted under Section 5.6(c) below, the Company shall not, nor shall it nor permit any of its controlled Affiliates (other than the Company officers, directors, affiliates, representatives or its Subsidiaries) shall, and shall not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) agents to, directly or indirectly, (i) initiate, encourage, take any action to solicit, assist, induce initiate or facilitate the making, submission or announcement of encourage any Acquisition Inquiry or Acquisition Proposal; , (ii) furnish or otherwise provide access to participate in any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Inquiry with, or Acquisition Proposal; or (iv) otherwise facilitate encourage any effort or attempt by, any other Person to make or implement facilitate an Acquisition Inquiry or Acquisition Proposal or enter into (iii) take any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating action to any Acquisition Inquiry or produce an Acquisition Proposal.
(b) Upon . From and after the execution date hereof, Stockholder the Company and all of its officers, directors, employees, attorneys, advisors and other representatives shall immediately cease and cause to be terminated all existing activities, discussions or negotiations with doing any parties (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations)the foregoing.
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply Company may, directly or indirectly, subject to a confidentiality agreement containing customary terms, (i) with respect furnish to any discussions party information and access in response to a request for information or negotiations with respect access made incident to an Acquisition Proposal made after the transfer of Shares permitted by Section 2.3, or date hereof and (ii) participate in discussions and negotiate with respect such party concerning any written Acquisition Proposal made after the date hereof; provided that (i) neither the Company nor any such Person solicited, initiated or encouraged such Acquisition Proposal and (ii) the Special Committee shall have determined in good faith based upon the advice of counsel to the Special Committee that the taking of such action is necessary to discharge the Boards fiduciary duties under applicable law.
(d) During the term of this Agreement, the Board of the Company shall (i) immediately notify Buyer if any discussions between Acquisition Proposal is made, indicating in reasonable detail the Stockholderidentity of the offeror and the terms and conditions of such Acquisition Proposal and (ii) keep Buyer promptly advised of all material developments that could culminate in the Board withdrawing, on modifying or amending its recommendation of the one hand, Merger and any Affiliate or Representative of Stockholder on the other handtransactions contemplated by this Agreement.
(e) During the term of this Agreement, the Company shall not waive or modify any provisions contained in any confidentiality agreement entered into relating to a possible Acquisition Proposal unless the Special Committee shall have determined in good faith based on advice of counsel to the Special Committee that the taking of such action is necessary to discharge the Boards fiduciary duties under applicable law. Notwithstanding the foregoing, the Company may make the disclosure contemplated by Rule 14e-2(a) under the Exchange Act to the extent that such disclosure is required to be made by such Rule; provided that the Company may only recommend a tender offer giving rise to such obligation as contemplated by such Rule if the Special Committee shall have determined in good faith based upon the advice of counsel to the Special Committee that the taking of such action is necessary to discharge the Boards fiduciary duties under applicable law.
Appears in 1 contract
Sources: Merger Agreement (Davis S Robert)
Acquisition Proposals. (a) Stockholder Each of IQB and Wherify agrees that neither it nor any of its controlled Affiliates (other than the Company shall not, directly or its Subsidiaries) shallindirectly, and shall instruct its officers, directors, employees, agents or advisors or other representatives or consultants not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, (i) initiateuntil the Effective Time or the termination of this Agreement, encourage, solicit, assist, induce solicit or facilitate the making, submission initiate any proposals or announcement of offers from any Acquisition Inquiry or Acquisition Proposal; (ii) furnish or otherwise provide access person relating to any information regarding acquisition, purchase or sale of all or a material amount of the assets of, or any Acquired Company securities of, or any merger, consolidation or business combination with, IQB or Wherify. Notwithstanding the foregoing, prior to any Person the adoption of this Agreement at the IQB Stockholders Meeting (the "Specified Time"), IQB may, to the extent required by the fiduciary obligations of the IQB Board, as determined in connection good faith by the IQB Board, after consultation with or outside counsel, in response to any Acquisition Inquiry or Acquisition Proposal; a Qualifying Proposal that did not result from a breach by IQB Company of this Section 10.1, (iiix) engage furnish information with respect to IQB to the person making such Qualifying Proposal and its representatives pursuant to a confidentiality agreement not less restrictive of the other party than the Confidentiality Agreement and (y) participate in discussions or negotiations with such person and its representatives regarding such Qualifying Proposal.
(b) Neither the Board of Directors of IQB or Wherify, nor any Person with respect committee thereof, shall, except as set forth in this Section 10.1:
(i) withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to the other party the approval or recommendation by the Wherify or IQB Board of Directors or any Acquisition Inquiry such committee of this Agreement or Acquisition Proposal; the Merger.
(ii) cause or (iv) otherwise facilitate any effort permit Wherify or attempt IQB to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheetagreement in principle, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document agreement (an "Alternative Acquisition Agreement") constituting or Contract relating to any Acquisition Inquiry or Acquisition Proposal.
(b) Upon the execution hereof, Stockholder shall immediately cease and cause to be terminated all existing activities, discussions or negotiations with any parties Proposal (other than Parent and its Affiliatesa confidentiality agreement referred to in Section 10.1(a) conducted heretofore with respect entered into in the circumstances referred to in Section 10.1(a)); or
(iii) adopt, approve or recommend, or propose to adopt, approve or recommend, any Acquisition Inquiry Proposal. Notwithstanding the foregoing, the Board of Directors of IQB may, in response to a Superior Proposal that did not result from a breach by IQB of this Section 10.1, withdraw or Acquisition modify the recommendation by the Board of Directors of IQB or any committee thereof of this Agreement and the Merger, if the Board of Directors determines in good faith (after consultation with outside counsel) that such actions are required by its fiduciary obligations, but only at a time that is prior to the Specified Time and is after the third business day following receipt by Wherify of written notice advising it that the Board of Directors of IQB desires to withdraw or modify the recommendation due to the existence of a Superior Proposal, specifying the material terms and conditions of such Superior Proposal or sale of Shares held by Stockholder, and shall refrain from engaging identifying the person making such Superior Proposal. Nothing in any future discussions or negotiations between Stockholder and any Person this Section 10.1 (other than Parent Section 10.1(d)) shall be deemed to limit IQB's obligation to call, give notice of, convene and hold the Wherify Stockholders Meeting, regardless of whether the Board of Directors of IQB has withdrawn or modified its Affiliates) with respect to any sale recommendation of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations)this Agreement and the Merger.
(c) Notwithstanding the foregoingIQB shall promptly advise Wherify orally, with written confirmation to follow promptly (and in any event within 24 hours), of IQB or any of its officers, directors, investment bankers, financial advisors or attorneys attaining knowledge of any Acquisition Proposal or any request for nonpublic information in connection with any Acquisition Proposal, or of any inquiry with respect to, or that could reasonably be expected to lead to, any Acquisition Proposal, the restrictions in this Section 5.2 material terms and conditions of any such Acquisition Proposal or inquiry and the identity of the person making any such Acquisition Proposal or inquiry. IQB shall not apply (i) with respect provide any information to any or participate in discussions or negotiations with the person or entity making any Qualifying Proposal until three business days after IQB has first notified Wherify of such Qualifying Proposal as required by the preceding sentence. IQB shall (i) keep Wherify fully informed, on a prompt basis (and in any event within 24 hours), of the status and any material change to the terms of any such Acquisition Proposal or inquiry, (ii) provide to Wherify as promptly as practicable after receipt or delivery thereof copies of all correspondence and other written material sent or provided to IQB from any third party describing the terms of any Acquisition Proposal, and (iii) if Wherify shall make a counterproposal, consider and cause its financial and legal advisors to negotiate on its behalf in good faith with respect to the transfer terms of Shares permitted by such counterproposal. Contemporaneously with providing any information to a third party in connection with any such Qualifying Proposal, IQB shall furnish a copy of such information to Wherify.
(d) Nothing contained in this Section 2.3, 10.1 or (ii) in Section 10.13 shall be deemed to prohibit IQB from taking and disclosing to its stockholders a position with respect to a tender offer contemplated by Rule 14e-2(a) promulgated under the Exchange Act if, in the good faith judgment of the Board of Directors of IQB, after consultation with outside counsel, failure to so disclose would be inconsistent with its obligations under applicable law; provided, however, that, except as set forth in Section 10.1(b), in no event shall the Board of Directors of IQB or any discussions between committee thereof withdraw or modify or propose to withdraw or modify, in a manner adverse to Wherify, the Stockholder, on approval or recommendation by the one hand, and any Affiliate IQB or Representative such committee of Stockholder on the other handMerger or this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Iq Biometrix Inc)
Acquisition Proposals. (a) Stockholder agrees that From the date of this Agreement until the Closing Date or, if earlier, the termination of this Agreement, neither it the Acquiror nor any of its controlled Affiliates (other than the Company or its Subsidiaries) shallAcquiror Principal Shareholder will, and shall not neither the Acquiror nor the Acquiror Principal Shareholder will authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative the any representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged Acquiror or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) Acquiror Principal Shareholder to, directly or indirectly, : (i) solicit, initiate, knowingly encourage, solicit, assist, induce or facilitate the making, submission or announcement of any Acquisition Inquiry Competing Transaction Proposal from any Person (other than Acquiree or Acquisition the Acquiree Ultimate Shareholders, a “Third Party”) or take any action that could reasonably be expected to lead to a Competing Transaction Proposal; , (ii) furnish or otherwise provide access to any information regarding any Acquired Company the Acquiror to any Person Third Party in connection with or in response to any Acquisition Inquiry a Competing Transaction Proposal or Acquisition Proposal; an inquiry or indication of interest, (iii) engage in or continue any discussions or negotiations with any Person Third Party with respect to any Acquisition Inquiry or Acquisition Competing Transaction Proposal; or , (iv) otherwise facilitate approve, endorse or recommend any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Competing Transaction Proposal or (v) enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement intent or other similar document or any Contract contemplating or otherwise relating to any Acquisition Inquiry or Acquisition Competing Transaction Proposal.
(b) Upon Concurrently with the execution hereofof this Agreement, Stockholder Acquiror and the Acquiror Principal Shareholder shall (i) immediately cease and cause to be terminated all any existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect Person that relate to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or Competing Transaction Proposal; (ii) as soon as practicable request each Person that has executed, within twelve (12) months prior to the date of this Agreement, a confidentiality agreement in connection with respect its consideration of a possible Competing Transaction Proposal to return or destroy all confidential information relating to the Acquiror heretofore furnished to such Person by or on behalf of the Acquiror Principal Shareholder or the Acquiror, subject to whatever rights, if any, that such Person has to retain any discussions such information or avoid any demand for its return or destruction pursuant to the terms of the confidentiality agreement between such Person and the StockholderAcquiror Principal Shareholder or the Acquiror; and (iii) cause any physical or virtual data room containing any such information to no longer be accessible to or by any Person other than Acquiree, on the one hand, Acquiree Ultimate Shareholders and any Affiliate or Representative of Stockholder on the other handtheir respective representatives.
Appears in 1 contract
Sources: Share Exchange Agreement (Metha Energy Solutions Inc.)
Acquisition Proposals. (a) Stockholder agrees Wyndham represents and warrants that neither it has terminated any discussions or negotiations relating to, or that may reasonably be expected to lead to, any Acquisition Proposal (as defined below). From and after the date hereof until the termination of this Agreement, Wyndham shall not, nor shall it permit any of its controlled Affiliates (other than the Company or its Subsidiaries) shallWyndham Subsidiaries to, and nor shall not it authorize or permit its Representatives (it being understood thatany officer, for purposes hereofdirector, a Representative employee, agent, advisor or representative of, Wyndham or any of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) Wyndham Subsidiaries to, directly or indirectly, indirectly (i) initiate, encourage, solicit, assistinitiate or encourage the submission of, induce any inquiries, proposals or facilitate the making, submission or announcement of offers from any Acquisition Inquiry or person relating to an Acquisition Proposal; , (ii) furnish or otherwise provide access to enter into any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person agreement with respect to any Acquisition Inquiry Proposal, or (iii) enter into, engage in, or participate or continue in, any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making of any proposal that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal; . Notwithstanding anything to the contrary in this Agreement, Wyndham may (A) furnish information to, or (iv) otherwise facilitate participate in discussions or negotiations with, any effort person or attempt entity that makes or expresses a bona fide intention to make an unsolicited proposal to acquire Wyndham and/or any of the Wyndham Subsidiaries pursuant to a merger, consolidation, share exchange, business combination, tender or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement exchange offer or other similar document transaction if the Board of Directors of Wyndham determines, based on the advice of its outside legal counsel (the "Wyndham Legal Counsel"), that such action is necessary in order to comply with the directors' fiduciary duties to the stockholders of Wyndham under applicable law; provided, however, that prior to Wyndham's furnishing such information or Contract participating in such discussions or negotiations, such person or entity shall have executed a confidentiality and standstill agreement with Wyndham having terms substantially similar to those contained in that certain letter agreement dated January 27, 1997 (the "Patriot Confidentiality Agreement") between Patriot and Wyndham relating to any Acquisition Inquiry or the provision of Evaluation Material (as defined in the Patriot Confidentiality Agreement) by Wyndham to Patriot and (B) comply with Rules 14d-9 and 14e-2 promulgated under the Exchange Act with respect to an Acquisition Proposal.
(b) Upon As used herein, the execution hereofterm "Acquisition Proposal" shall mean any proposed or actual (i) merger, Stockholder consolidation or similar transaction involving Wyndham, (ii) sale, lease or other disposition, directly or indirectly, by merger, consolidation, share exchange or otherwise, of any assets of Wyndham or the Wyndham Subsidiaries representing 15% or more of the consolidated assets of Wyndham and the Wyndham Subsidiaries, (iii) issue, sale or other disposition of (including by way of merger, consolidation, share exchange or any similar transaction) securities (or options, rights or warrants to purchase, or securities convertible into, such securities) representing 15% or more of the votes attached to the outstanding securities of Wyndham, (iv) transaction in which any person shall immediately cease and cause acquire beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act), or the right to be terminated all existing activitiesacquire beneficial ownership, discussions or negotiations with any parties "group" (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, 15% or more of the outstanding shares of Wyndham Common Stock, (v) recapitalization, restructuring, liquidation, dissolution, or other than Parent and its Affiliates) conducted heretofore similar type of transaction with respect to Wyndham or any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3Wyndham Subsidiaries, or (iivi) with respect transaction which is similar in form, substance or purpose to any discussions between of the Stockholderforegoing transactions; provided, on however, that the one hand, term "Acquisition Proposal" shall not include the Merger and any Affiliate or Representative of Stockholder on the other handtransactions contemplated thereby.
Appears in 1 contract
Acquisition Proposals. (a) Stockholder agrees that neither it nor any of its controlled Affiliates (other than the The Company or its Subsidiaries) shallshall not, and shall cause its subsidiaries, directors, officers, and employees not authorize to, and shall direct and use its reasonable best efforts to cause the attorneys, investment bankers and other advisors or permit its Representatives representatives (it being understood thatcollectively, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder “Representatives”) of the Company and its subsidiaries not as an officer, director or employee of the Company) to, directly or indirectly, (i) initiate, encouragesolicit or knowingly encourage or otherwise knowingly facilitate any inquiries with respect to, solicitor the making of, assist, induce or facilitate the making, submission or announcement of any Acquisition Inquiry Proposal or any offer or proposal that could reasonably be expected to lead to an Acquisition Proposal; , (ii) furnish engage, continue or otherwise participate in any negotiations or discussions concerning, or provide access to its properties, books and records or any confidential information regarding or data to, any Acquired Company Person relating to an Acquisition Proposal or any offer or proposal that could reasonably be expected to lead to an Acquisition Proposal, (iii) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Acquisition Proposal, or (iv) execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement or other similar agreement relating to any Acquisition Proposal, and the Company shall not resolve or agree to do any of the foregoing. The Company shall immediately cease any solicitations, discussions or negotiations or other activities with any Person (other than the Parties) in connection with or in response to any Acquisition Inquiry or an Acquisition Proposal; . The Company also agrees that it will promptly request each Person (iiiother than the Parties) engage that has prior to the date hereof executed a confidentiality agreement in connection with its consideration of an Acquisition Proposal to promptly return or destroy all confidential information furnished to such Person by or on behalf of it or any of its subsidiaries prior to the date hereof. The Company shall promptly (and in any event within 24 hours of the Company obtaining knowledge thereof) notify Parent orally and in writing of the receipt of any inquiries, proposals or offers, any requests for information, or any requests for discussions or negotiations with the Company or any Person of its Representatives, in each case with respect to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principleoffer or proposal that could reasonably be expected to lead to an Acquisition Proposal after the date hereof, letter which notice shall include a summary of intentthe material terms of, memorandum and the identity of understandingthe Person making, term sheetsuch Acquisition Proposal (including, acquisition agreementif applicable, option agreementcopies of any such written requests, joint venture agreementproposals or offers, partnership agreementincluding proposed agreements) and thereafter shall keep Parent informed, merger agreement or other similar document or Contract relating on a reasonably current basis, of any material developments related to any Acquisition Inquiry or Acquisition Proposalthe terms, conditions and process associated with such proposals and offers.
(b) Upon Notwithstanding anything to the execution hereofcontrary in Section 6.1(a) or Section 6.3, Stockholder nothing contained herein shall immediately cease prevent the Company or the Company Board from:
(i) taking and cause disclosing to its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act (or any similar communication to stockholders in connection with the making or amendment of a tender offer or exchange offer, in each case, to the extent legally required) or from making any other legally required disclosure to stockholders with regard to the transactions contemplated by this Agreement or an Acquisition Proposal (provided that neither the Company nor the Company Board may recommend any Acquisition Proposal unless expressly permitted by Section 6.1(c), and provided, further, that if any such disclosure does not reaffirm the Recommendation, such disclosure shall be deemed to be terminated all existing activitiesa Change of Recommendation); provided, discussions further, that the issuance by the Company or negotiations with the Company Board of a “stop, look and listen” communication as contemplated by Rule 14d-9(f) promulgated under the Exchange Act (or any parties similar communication to its stockholders) in which the Company indicates that the Company Board has not changed the Recommendation shall not constitute a Change of Recommendation;
(other than Parent ii) prior to, but not after, obtaining the Company Requisite Vote, providing access to its properties, books and its Affiliates) conducted heretofore with respect records and providing information or data in response to any Acquisition Inquiry a request therefor by a Person or group who has made a bona fide Acquisition Proposal that was not initiated, solicited, encouraged or sale facilitated in violation in any material respect of Shares held by Stockholderthis Agreement, if the Company Board (A) shall have determined in good faith, after consultation with its legal counsel and financial advisor, that such Acquisition Proposal would reasonably be expected to constitute, result in or lead to a Superior Proposal, (B) shall refrain have determined in good faith, after consultation with its legal counsel, that the failure to provide such access would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law and (C) has received from the Person so requesting such information an executed Acceptable Confidentiality Agreement; provided, that any such access, information or data has previously been provided to Parent or is provided to Parent prior to or substantially concurrently with the time such access, information or data is provided to such Person or group;
(iii) prior to, but not after, obtaining the Company Requisite Vote, contacting and engaging in any future negotiations or discussions or negotiations between Stockholder and with any Person or group and their respective Representatives who has made an Acquisition Proposal that was not initiated, solicited, encouraged or facilitated in violation in any material respect of this Agreement if the Company Board shall have determined in good faith, after consultation with its legal counsel and financial advisor, that (other than Parent A) such Acquisition Proposal would reasonably be expected to constitute, result in, or lead to a Superior Proposal and its Affiliates(B) with respect the failure to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to contact such Person or group and engage in any such negotiations or discussions would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law;
(iv) prior to, but not after, obtaining the Company Requisite Vote, making a Change of Recommendation (but only if permitted by Section 6.3); or
(v) resolving or negotiationsagreeing to take any of the foregoing actions, to the extent such actions would be permitted by the foregoing clauses (i) through (iv) of this Section 6.1(b).
(c) Notwithstanding anything in Section 6.1(a) to the foregoingcontrary, if, at any time prior to, but not after, obtaining the Company Requisite Vote, the restrictions Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel, in response to a bona fide Acquisition Proposal that was not initiated, solicited, encouraged or facilitated in violation in any material respect of this Section 5.2 shall not apply Agreement, that such Acquisition Proposal constitutes a Superior Proposal, the Company or the Company Board may (and may resolve or agree to) (i) terminate this Agreement pursuant to Section 8.1(d)(ii) to enter into a definitive agreement with respect to such Superior Proposal or (ii) effect a Change of Recommendation in accordance with clause (x)(A) of Section 6.3; provided, however, that, if the Company terminates the Agreement pursuant to Section 8.1(d)(ii), the Company pays to Parent the Company Termination Fee required to be paid pursuant to Section 8.2(b)(i) concurrently with or prior to such termination; provided further that the Company will not be entitled to enter into such definitive agreement and to terminate this Agreement in accordance with Section 8.1(d)(ii) or effect a Change of Recommendation pursuant to clause (x)(A) of Section 6.3 unless (x) the Company delivers to Parent a written notice (a “Company Notice”), advising Parent that the Company Board proposes to take such action and containing the material terms and conditions of the Superior Proposal that is the basis of the proposed action by the Company Board (including the identity of the party making such Superior Proposal and copies of any discussions written proposals or offers, including proposed agreements) and (y) at or after 5:00 p.m., New York City time, on the fifth Business Day immediately following the day on which the Company delivered the Company Notice (such period from the time the Company Notice is provided until 5:00 p.m. New York City time on the fifth Business Day immediately following the day on which the Company delivered the Company Notice, the “Notice Period”), the Company Board reaffirms in good faith (after consultation with its outside counsel and financial advisor) that such Acquisition Proposal continues to constitute a Superior Proposal. If requested by Parent, the Company will, and will cause its Representatives to, during the Notice Period, engage in good faith negotiations with Parent and its Representatives to make such adjustments in the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal. The Company agrees to notify Parent promptly if it determines during such Notice Period not to terminate this Agreement and enter into the definitive agreement referred to in the Company Notice. Any material amendment to the terms of a proposed agreement relating to a Superior Proposal will be deemed to be a new proposal or proposed agreement relating to a Superior Proposal for purposes of this Section 6.1(c), including with respect to the transfer Notice Period (except that references to the five Business Day period above shall be deemed to be references to a three Business Day period; provided that such new Notice Period shall in no event shorten the original Notice Period).
(d) For purposes of Shares permitted by Section 2.3this Agreement, or (ii) with respect to any discussions between the Stockholder, on following terms shall have the one hand, and any Affiliate or Representative of Stockholder on the other hand.meanings assigned below:
Appears in 1 contract
Acquisition Proposals. (a) Stockholder agrees that neither it nor Subject to the remainder of this Section 7.5, none of the Company or any of its controlled Affiliates Subsidiaries shall (whether directly or indirectly through Affiliates, directors, officers, employees, Representatives or other than intermediaries), nor shall (directly or indirectly) the Company authorize any of its or its Subsidiaries’ officers, directors, Representatives or other intermediaries or Subsidiaries to: (i) shallsolicit, and shall not authorize initiate or permit its Representatives knowingly facilitate (it being understood that, and agreed that ministerial acts that are not otherwise prohibited by this Section 7.5 (such as answering unsolicited phone calls) shall not be deemed to “facilitate” for purposes hereofof this Section 7.5) the submission of inquiries, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged proposals or directed such offers from any Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company(other than Parent) to, directly or indirectly, (i) initiate, encourage, solicit, assist, induce or facilitate the making, submission or announcement of relating to any Acquisition Inquiry Proposal, or agree to or recommend any Acquisition Proposal; (ii) furnish or otherwise provide access enter into any agreement (x) to any information regarding any Acquired Company to any Person in connection with or in response to consummate any Acquisition Inquiry Proposal, (y) to approve any Acquisition Proposal or Acquisition Proposal(z) requiring it to abandon, terminate or fail to consummate the Merger; (iii) engage enter into or participate in any discussions or negotiations in connection with any Person Acquisition Proposal or inquiry with respect to any Acquisition Inquiry Proposal, or furnish any non-public information with respect to its business, properties or assets in connection with any Acquisition Proposal; (iv) waive, terminate, modify or release any Person (other than Parent, Merger Sub and their respective Affiliates) from any provision of or grant any permission, waiver or request under any “standstill” or similar agreement or obligation, unless the Company’s Board of Directors has determined in good faith after consultation with outside legal counsel that failure to take such action would be inconsistent with its fiduciary duties under applicable Law, or (v) agree to resolve to take, or take, any of the actions prohibited by clause (i), (ii), (iii) or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition Proposal.
(b) Upon the execution hereof, Stockholder this sentence. The Company shall immediately cease cease, and cause its Representatives and other intermediaries to be terminated immediately cease, any and all existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry or an Acquisition Proposal and shall immediately terminate online data room access to all such parties and their Representatives. For purposes of this Section 7.5, the term “Person” means any person, corporation, entity or sale “group,” as defined in Section 13(d) of Shares held by Stockholderthe Exchange Act, other than, with respect to the Company, Parent or any Subsidiary of Parent. Notwithstanding the foregoing, the Company may, following the receipt of an Acquisition Proposal, contact the Person that has made such Acquisition Proposal to (i) clarify and understand the terms and conditions thereof solely to facilitate the Board of Directors of the Company’s determination of whether such Acquisition Proposal constitutes or would reasonably be expected to lead to, a Superior Proposal, and shall refrain from engaging (ii) inform such Person of the existence of the provisions of this Section 7.5.
(b) Notwithstanding anything to the contrary in any future this Section 7.5, the Company, directly or indirectly through Affiliates, directors, officers, employees, Representatives or other intermediaries, may, prior to the receipt of the Required Company Vote, (i) engage in negotiations or discussions or negotiations between Stockholder and with any Person (other than Parent and its AffiliatesRepresentatives and intermediaries) that has made an unsolicited bona fide written Acquisition Proposal not resulting from or arising out of a breach of Section 7.5(a), and/or (ii) furnish to such Person information relating to the Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement and to the extent nonpublic information that has not been made available to Parent is made available to such Person, make available or furnish such nonpublic information to Parent promptly (and in any event within 24 hours) following the time it is provided to such Person, in the case of each of clauses (i) or (ii), if, and only if, prior to taking such particular action, the Board of Directors of the Company has determined in good faith after consultation with respect its financial advisors and outside legal counsel that such Acquisition Proposal constitutes or would reasonably be expected to any sale of any Shares held by Stockholder (other than lead to, a Superior Proposal, and that the failure to state that Stockholder is currently not permitted to engage in take such discussions or negotiations)action would be inconsistent with its fiduciary duties under applicable Law.
(c) Notwithstanding the foregoing, the restrictions anything in this Section 5.2 7.5 to the contrary, at any time prior to the receipt of the Required Company Vote, the Company’s Board of Directors may (x) withdraw, modify or amend in any manner adverse to Parent its approval or recommendation of this Agreement or the Merger or recommend an Acquisition Proposal, or enter into a Company Acquisition Agreement or resolve or agree to take any of the foregoing actions (a “Company Adverse Recommendation Change”) (i) in response to an Intervening Event, or (ii) following receipt of an unsolicited bona fide written Acquisition Proposal that did not result from a breach of this Section 7.5 and which the Company’s Board of Directors determines in good faith, in consultation with its financial advisors and outside legal counsel constitutes a Superior Proposal or would reasonably be expected to lead to a Superior Proposal, in the case of each of clauses (i) and (ii), if and only if, the Company’s Board of Directors has determined in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law and subject to the Company’s compliance with Section 7.5(d) or (y) following receipt of an unsolicited bona fide written Acquisition Proposal that did not result from a breach of this Section 7.5 and which the Company’s Board of Directors determines in good faith, in consultation with its financial advisors and outside legal counsel constitutes a Superior Proposal or would reasonably be expected to lead to a Superior Proposal, terminate this Agreement in accordance with the provisions of Section 9.1(f) and enter into a definitive acquisition agreement, merger agreement or similar definitive agreement (a “Company Acquisition Agreement” (for the avoidance of doubt an Acceptable Confidentiality Agreement shall not apply (iconstitute a Company Acquisition Agreement)) with respect to such Superior Proposal, if, and only if, the Company’s Board of Directors has determined in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under applicable Law and the Company complies with Section 7.5(d) and, concurrently with entering into a Company Acquisition Agreement with respect to such Superior Proposal, the Company pays the Termination Fee in accordance with Section 9.2(c).
(d) Prior to the Company taking any action permitted (i) under Section 7.5(c)(x)(i), the Company shall (A) provide Parent with at least four (4) Business Days’ prior written notice advising Parent it intends to effect a Company Adverse Recommendation Change and specifying, in reasonable detail, the reasons therefor and all material information with respect to such Intervening Event (including in relation to all developments related thereto), and (B) if requested by Parent, during such four (4) Business Day period, negotiate in good faith with Parent (to the extent Parent desires to negotiate) to make such adjustments to the terms and conditions of this Agreement such that the Company’s Board of Directors would determine in good faith, after consultation with its financial advisors and outside legal counsel, that the failure of the Company’s Board of Directors to make a Company Adverse Recommendation Change would not be inconsistent with its fiduciary duties under applicable Law, or (ii) under Section 7.5(c)(x)(ii) or Section 7.5(c)(y) the Company shall provide Parent with at least four (4) Business Days’ prior written notice (it being understood and agreed that any material amendment to the amount or form of consideration payable in connection with the applicable Acquisition Proposal shall require a new notice and a two (2) Business Day period) advising Parent that the Company’s Board of Directors intends to take such action, specifying the material terms and conditions of the Superior Proposal and that the Company shall, if requested by Parent, during such four (4) Business Day period (or two (2) Business Day period, if applicable), negotiate with Parent (to the extent Parent desires to negotiate) to make such adjustments to the terms and conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal.
(e) The Company shall notify Parent promptly (but in any event within 24 hours) after receipt of any bona fide Acquisition Proposal and the material terms and conditions of any such Acquisition Proposal. The Company shall keep Parent reasonably informed of the status and material details (including any amendments or proposed amendments) of any such Acquisition Proposal and keep Parent reasonably informed as to the material details of all discussions or negotiations with respect to any such Acquisition Proposal (in each case in a manner that is not unduly disruptive of the transfer Company’s ability to conduct good faith discussions in accordance with this Section 7.5 with the party making such Acquisition Proposal and its Representatives, advisors and agents) and shall provide Parent within 24 hours after receipt thereof all copies of Shares permitted any other documentation, including any drafts of a Company Acquisition Agreement with respect to such Acquisition Proposal, material to understanding such Acquisition Proposal (as determined by the Company) received by the Company from the Person (or from any Representatives, advisors or agents of such Person) making such Acquisition Proposal or with whom such discussions or negotiations are taking place; provided that, for the sake of clarity, it is understood and agreed that all such information and communications shall be subject to the Confidentiality Agreement.
(f) Nothing contained in this Section 2.37.5 or elsewhere in this Agreement shall prohibit the Company or the Company’s Board of Directors, directly or indirectly through its Representatives, from complying with its disclosure obligations under applicable Law with regard to an Acquisition Proposal, including taking and disclosing to the Company’s Shareholders a position with respect to a tender or exchange offer by a third party pursuant to Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act (or any similar communication to the Company’s Shareholders), and none of the foregoing shall constitute a Company Adverse Recommendation Change provided that any such disclosure (other than a “stop, look and listen” communication or other similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, or an express rejection of the Acquisition Proposal or a reaffirmation of the Company Board Recommendation) shall be deemed to be a Company Adverse Recommendation Change if the Company Board fails to expressly and publicly reaffirm the Company Board Recommendation within five (ii5) Business Days following any request by Parent in response to such Company disclosure (it being agreed that Parent may only make one (1) request with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other handsingle such disclosure).
Appears in 1 contract
Sources: Merger Agreement (Cifc LLC)
Acquisition Proposals. (a) From the date hereof until the Termination Date, each Stockholder hereby covenants and agrees that neither it nor any of such Stockholder shall not, and shall cause its controlled Affiliates (other than the Company or and its Subsidiaries) shalland their directors, officers, employees not to, and shall not authorize or permit instruct and use its reasonable best efforts to cause its and its controlled Affiliates’ other Representatives (it being understood thatin each case, for purposes hereof, a Representative in their capacities as representatives of the Company shall Stockholder) not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, indirectly (i) (1) solicit, initiate, encouragepropose, solicit, assist, knowingly induce or facilitate the making, submission or announcement of, or knowingly encourage, facilitate or assist, any inquiry, proposal, indication of any Acquisition Inquiry interest or offer that constitutes or would reasonably be expected to lead to, an Acquisition Proposal; (ii) furnish or otherwise provide access to any information regarding any Acquired Company to any Person (other than Parent, Merger Sub or any designees of Parent or Merger Sub) any non-public information relating to the Company or any of its Subsidiaries or afford to any Person access to the business, properties, assets, books, records or personnel, of the Company or any of its Subsidiaries, in any such case in connection with or in response to any Acquisition Inquiry Proposal or any inquiry, proposal, indication of interest or offer that would reasonably be expected to lead to an Acquisition Proposal; (iii) participate or engage in or continue discussions or negotiations with any Person with respect relating to an Acquisition Proposal (or inquiries, proposals, indications of interest or offers that would reasonably be expected to lead to an Acquisition Proposal) (in each case, other than informing such Persons of the existence of the provisions contained in this Section 3.1 and contacting the Person who has made any Acquisition Inquiry Proposal solely in order to clarify the terms of the Acquisition Proposal in connection with determining whether the Acquisition Proposal constitutes or would be reasonably expected to lead to a Superior Proposal); (iv) approve, endorse or recommend an Acquisition Proposal; or (ivv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheetmerger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any an Acquisition Inquiry or Acquisition Proposal.
(b) Upon Transaction. Immediately upon the execution hereofof this Agreement, each Stockholder will cease and shall cause each of its controlled Affiliates and each of its and its controlled Affiliates’ directors, officers and employees to, and shall instruct and use its reasonable best efforts to cause its and its controlled Affiliates’ other Representatives to immediately cease and cause to be terminated all existing activitiesany discussions, discussions communications or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than the parties hereto and their respective Representatives) relating to an Acquisition Proposal (or inquiries, proposals, indications of interest or offers that could reasonably be expected to lead to an Acquisition Proposal). Notwithstanding anything in this Section 3.1 to the contrary, each Stockholder may, at the Company’s request and with substantially concurrent notice to Parent and its Affiliates) (which notice shall include the identity of the Person who has made the applicable Acquisition Proposal), engage in discussions with any Person who has made an Acquisition Proposal with respect to any sale which the Company Board is engaging in negotiations or discussions pursuant to and in compliance with Section 5.3 of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in the Merger Agreement, solely for the purpose of entering into a voting agreement with such discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect Person on substantially similar terms to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other handterms hereof.
Appears in 1 contract
Sources: Voting Agreement (Gen Digital Inc.)
Acquisition Proposals. Pursuant to the Merger Agreement, PJAM has agreed not to solicit, initiate or encourage, directly or indirectly, the submission of any Acquisition Proposal (aas defined below) Stockholder agrees or participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate, any Acquisition Proposal or any inquiries or the making of any proposal that neither it nor constitutes, or may be reasonably be expected to lead to, any Acquisition Proposal. Notwithstanding the foregoing, prior to the acceptance for payment of Shares pursuant to the Offer, PJAM may, to the extent required by the fiduciary obligations of the Board, as determined in good faith by a majority of the disinterested members thereof after consultation with outside counsel, in response to any Acquisition Proposal that was made by a person whom the Special Committee determines, in good faith after consultation with outside counsel and an independent financial advisor, to be reasonably capable of making a Superior Company Proposal (as defined below), that was not solicited by PJAM and that did not otherwise result from a breach of its obligations pursuant to the Merger Agreement, (x) furnish information with respect to PJAM to the person or group making such Acquisition Proposal and its representatives pursuant to a customary confidentiality agreement and (y) participate in discussions and negotiations with such person or group and its representatives to the extent required regarding such Acquisition Proposal. PJAM agreed not to permit any of its controlled Affiliates (other than the Company or its Subsidiaries) shall, and shall not subsidiaries nor will it authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an any officer, director or employee of any investment banker, attorney, accountant or other advisor of, PJAM or any of its subsidiaries to take similar actions. The Merger Agreement further provides that neither the CompanyBoard nor the Special Committee will withdraw or modify, or propose to withdraw or modify, in a manner adverse to the Purchaser, its approval or recommendation of the Merger Agreement, the Offer or the Merger, unless PJAM's Board or the Special Committee, after consultation with independent legal counsel, determines in good faith that such action is necessary for the Board or the Special Committee to comply with its fiduciary duties under applicable Law. "Acquisition Proposal" means an offer or proposal regarding any of the following (other than the transactions contemplated by the Merger Agreement) toinvolving PJAM or any of its subsidiaries: (i) any merger, directly consolidation, share exchange, recapitalization, business combination or indirectlyother similar transaction; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of all or a significant portion of the assets of PJAM and its subsidiaries, taken as a whole, in a single transaction or series of related transactions; (iii) any tender offer or exchange offer for 10% or more of the outstanding Shares or the filing of any document under the Securities Act of 1933 or the Exchange Act, in connection therewith; (iv) any other transaction the consummation of which would reasonably be expected to impede, interfere with, prevent or materially delay the transaction contemplated by the Merger Agreement; or (v) any public announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing. "Superior Company Proposal" means any proposal made by a third party to acquire all or substantially all the equity securities or assets of PJAM, pursuant to a tender or exchange offer, a merger, a consolidation, a liquidation or dissolution, a recapitalization or a sale of all or substantially all of its assets, (i) initiateon terms which a majority of the disinterested directors of PJAM determines in its good faith judgment to represent superior value for the holders of Shares compared to the Offer and the Merger, encouragetaking into account all the terms and conditions of such proposal and this Agreement (including any proposal by the Purchaser to amend the terms of the Merger Agreement, solicit, assist, induce or facilitate the making, submission or announcement of any Acquisition Inquiry or Acquisition Proposal; Offer and the Merger) and (ii) furnish or otherwise provide access that is reasonably capable of being completed, taking into account all financial, regulatory, legal and other aspects of such proposal. Contribution of Shares. Immediately prior to any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition Proposal.
(b) Upon the execution hereof, Stockholder shall immediately cease and cause to be terminated all existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding the foregoingMerger, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect members of the Investor Group will contribute their Shares to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other handPurchaser.
Appears in 1 contract
Acquisition Proposals. (a) Stockholder agrees that neither it nor any of its controlled Affiliates (other than the Company or its Subsidiaries) shallSo long as this Agreement remains in effect, except as otherwise expressly permitted by this Agreement, RBI shall not, and shall not authorize authorize, permit or permit its Representatives cause any RBI Subsidiary and their respective officers, directors, or employees or any investment bankers, financial advisors, attorneys, accountants, consultants, agents or other representative retained by RBI or any RBI Subsidiary (it being understood thatcollectively, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company“RBI Representatives”) to, directly or indirectly, : (iA) initiate, encourage, solicit, assist, induce or encourage (including by way of furnishing information), or take any action to facilitate the makingmaking of, submission any inquiry, offer or announcement of any Acquisition Inquiry proposal that constitutes, relates or could reasonably be expected to lead to an Acquisition Proposal; (iiB) furnish or otherwise provide access respond to any information regarding any Acquired Company inquiry relating to any Person in connection with or in response to any Acquisition Inquiry or an Acquisition Proposal; (iiiC) engage recommend or endorse an Acquisition Proposal; (D) participate in any discussions or negotiations with regarding any Person Acquisition Proposal or furnish, or otherwise afford access, to any person (other than OLB) any information or data with respect to RBI or any Acquisition Inquiry RBI Subsidiary or otherwise relating to an Acquisition Proposal; (E) release any Person from, waive any provisions of, or fail to enforce any confidentiality agreement or standstill agreement to which RBI or any RBI Subsidiary is a party; or (ivF) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement, agreement in principle, letter of intentintent or similar instrument, memorandum of understanding, term sheet, acquisition including any exclusivity agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating with respect to any Acquisition Inquiry Proposal or approve or resolve to approve any Acquisition Proposal or any agreement, agreement in principle, letter of intent or similar instrument relating to an Acquisition Proposal.
(b) Upon . Any violation of the execution hereofforegoing restrictions by RBI or any RBI Representative, Stockholder whether or not such RBI Representative is so authorized and whether or not such RBI Representative is purporting to act on behalf of RBI or otherwise, shall be deemed to be a breach of this Agreement by RBI. RBI and each RBI Subsidiary shall, and shall cause each of the RBI Representatives to, immediately cease and cause to be terminated any and all existing activitiesdiscussions, discussions or negotiations negotiations, and communications with any parties (other than Parent and its Affiliates) conducted heretofore Persons with respect to any existing or potential Acquisition Inquiry Proposal. Notwithstanding the foregoing, prior to the approval of the Agreement and the Merger by RBI’s stockholders at the RBI Common Stockholders’ Meeting, RBI may respond to an inquiry, furnish nonpublic information regarding RBI and the RBI Subsidiaries to, or enter into discussions with, any Person in response to an unsolicited Acquisition Proposal that is submitted to RBI by such Person (and not withdrawn) if (A) RBI’s board of directors determines in good faith, after consultation with and having considered the advice of its outside legal counsel and the advice of ▇▇▇▇▇▇▇ Financial Advisors, Inc., that such Acquisition Proposal constitutes or sale is reasonably likely to lead to a Superior Proposal (as defined below), (B) RBI has not violated any of Shares held by Stockholderthe restrictions set forth in this Section 5.7(a)(ii), (C) RBI’s board of directors determines in good faith, after consultation with and based upon the advice of its outside legal counsel and the advice of ▇▇▇▇▇▇▇ Financial Advisors, Inc., that such action is required in order for the board of directors to comply with its fiduciary obligations under applicable law, and (D) at least two Business Days prior to furnishing any nonpublic information to, or entering into discussions with, such Person, RBI provides OLB written notice of the identity of such Person and of RBI’s intention to furnish nonpublic information to, or enter into discussions with, such Person and RBI receives from such Person an executed confidentiality agreement on terms no more favorable to such Person than the Confidentiality Agreement, which confidentiality agreement shall refrain from engaging not provide such Person with any exclusive right to negotiate with RBI. RBI shall promptly provide to OLB any non-public information regarding RBI or any RBI Subsidiary provided to any other Person that was not previously provided to OLB, such additional information to be provided no later than the date of provision of such information to such other Person. RBI shall promptly (and in any future event within 24 hours) notify OLB in writing if any proposals or offers are received by, any information is requested from, or any negotiations or discussions are sought to be initiated or continued with, RBI or any RBI Representatives, in each case in connection with any Acquisition Proposal, and such notice shall indicate the name of the Person initiating such discussions or negotiations between Stockholder or making such proposal, offer or information request and the material terms and conditions of any Person proposals or offers (and, in the case of written materials relating to such proposal, offer, information request, negotiations or discussion, providing copies of such materials (including e-mails or other than Parent electronic communications)). RBI agrees that it shall keep OLB informed, on a current basis, of the status and terms of any such proposal, offer, information request, negotiations or discussions (including any amendments or modifications to such proposal, offer or request). RBI further agrees that it will provide OLB with the opportunity to present its Affiliates) own proposal to the RBI board of directors in response to any such proposal or offer, and negotiate with OLB in good faith with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations)proposal.
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other hand.
Appears in 1 contract
Acquisition Proposals. (a) Stockholder agrees that neither it nor any of its controlled Affiliates (other than From and after the Company or its Subsidiaries) shall, and shall not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative execution of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder Merger Agreement until the earlier to occur of the Company and not as an officer, director or employee termination of the Company) toMerger Agreement and the Effective Time, directly or indirectly, (i) initiate, encourage, solicit, assist, induce or facilitate the making, submission or announcement of any Acquisition Inquiry or Acquisition Proposal; (ii) furnish or otherwise provide access Silicon Image and its subsidiaries are required to any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition Proposal.
(b) Upon the execution hereof, Stockholder shall immediately cease any and cause to be terminated all existing activities, discussions or negotiations with any parties persons conducted with respect to any proposal that constitutes or may reasonably be expected to lead to, any Acquisition Proposal, as defined below. Silicon Image and its subsidiaries shall not, and shall cause each of their respective directors, officers or other employees, controlled affiliates, and will direct or any investment banker, attorney or other advisors or representatives retained by any of them to not to (and shall not authorize any of them to), directly or indirectly: • solicit, initiate, knowingly encourage, knowingly assist, knowingly facilitate or knowingly induce the making, submission or announcement of, any proposal or transaction that constitutes or could reasonably be expected to lead to an Acquisition Proposal or Acquisition Transaction, as defined below; • participate or engage in discussions or negotiations with any person (other than Parent and or Purchaser) regarding any proposal or transaction that constitutes or could reasonably be expected to lead to an Acquisition Proposal or Acquisition Transaction; Table of Contents • furnish any non-public information relating to Silicon Image or any of its Affiliatessubsidiaries, or afford access to the business, properties, assets, books or records of Silicon Image or any of its subsidiaries to, or take any other action intended to knowingly encourage, or assist or facilitate, any person (other than Parent or Purchaser) conducted heretofore with respect that, to Silicon Image’s knowledge, is seeking to make or, in the 12 months prior to the date of the Merger Agreement has made, any proposal or transaction that constitutes or could reasonably be expected to lead to an Acquisition Proposal or Acquisition Transaction; • enter into any letter of intent, memorandum of understanding, definitive agreement or similar document or contract or commitment contemplating or otherwise relating to any Acquisition Inquiry Proposal or Acquisition Proposal Transaction (other than a nondisclosure agreement meeting certain requirements specified in the Merger Agreement); • approve, endorse or sale recommend any Acquisition Proposal; • except to the extent specifically permitted under the Merger Agreement to allow a party to make a confidential Acquisition Proposal, terminate, amend, waive or fail to enforce any rights under any standstill or other similar agreement between Silicon Image or any of Shares held by Stockholderits subsidiaries and any person (other than Parent); or • waive the applicability of all or any portion of Section 203 of the DGCL, and shall refrain from engaging the Delaware anti-takeover statute, in any future discussions or negotiations between Stockholder and respect of any Person (other than Parent and its Affiliatesaffiliates) in relation to any Acquisition Proposal or Acquisition Transaction. However, prior to the Acceptance Time, the Silicon Image Board may: • engage or participate in discussions or negotiations with any person that has made and not withdrawn a bona fide, written Acquisition Proposal that the Silicon Image Board concludes in good faith (after consultation with its financial advisor of nationally recognized standing and its outside legal counsel) constitutes or is reasonably likely to lead to a Superior Proposal (as defined below); and • furnish to such person non-public information relating to Silicon Image and its subsidiaries pursuant to a nondisclosure agreement the terms of which are no less favorable to Silicon Image than those contained in the Confidentiality Agreement (as defined in Section 11—“The Merger Agreement; Other Agreements—Confidentiality Agreement”) which shall not include any provisions that would prevent or restrict Silicon Image or its representatives from providing any information to Parent to which Parent is entitled under the Merger Agreement (and Silicon Image shall be permitted to negotiate and enter into such a nondisclosure agreement) unless Silicon Image shall, prior to December 21, 2014, already be a party to such an agreement with such third party and shall not include any provision calling for any exclusive right to negotiate with such third party; provided, however, in order to take any action described in the two bullets above, , (i) neither Silicon Image nor any of its subsidiaries can have breached or violated in any material respect its obligations described in this Section 11—“The Merger Agreement; Other Agreements—Merger Agreement—Acquisition Proposals,” (ii) the Silicon Image Board must have determined in good faith (after consultation with outside legal counsel) that the failure to take such action would be inconsistent with its fiduciary duties to Silicon Image’s stockholders under Delaware law, (iii) Silicon Image must give Parent prior written notice of the Acquisition Proposal, and of Silicon Image’s intention to take such actions and (iv) contemporaneously with furnishing any non-public information to such person, Silicon Image shall also furnish such non-public information to Parent to the extent not been previously furnished to Parent. Silicon Image shall promptly advise Parent in writing of any bona fide Acquisition Proposal, any request for information that would reasonably be expected to lead to an Acquisition Proposal or Acquisition Transaction or any inquiry that would reasonably be expected to lead to any Acquisition Proposal or Acquisition Transaction, including the material terms and conditions thereof and the identity of the person or group making any such Acquisition Proposal, request or inquiry; provided that Silicon Image may redact, and not disclose, the identity of Table of Contents the Person or group making any such Acquisition Proposal if disclosure of such identity would violate the terms of an existing confidentiality agreement. Silicon Image is obligated to keep Parent promptly and reasonably informed of the status, including all material amendments or proposed amendments, of any Acquisition Proposal, request or inquiry. Silicon Image must also notify Parent at least 24 hours before any meeting of the Silicon Image Board at which the Silicon Image Board is reasonably expected to consider an Acquisition Proposal or Acquisition Transaction, an inquiry relating to a potential Acquisition Proposal or Acquisition Transaction, or a request to provide non-public information to any Person in relation to an Acquisition Proposal or Acquisition Transaction. Neither the Silicon Image Board nor any committee thereof shall (i) fail to make, withhold, withdraw, amend, qualify or modify the Silicon Image Board Recommendation, (ii) approve, endorse or recommend an Acquisition Proposal or Acquisition Transaction, (iii) following the date of the Acquisition Proposal or any material modification thereto is first made public or sent or given to the Silicon Image stockholders, fail to issue a press release reaffirming the Silicon Image Board Recommendation within three business days following Parent’s written request to do so, (iv) take any action to exempt or make any person (other than Parent or Purchaser) not subject to the provisions of Section 203 of the DGCL or any other potentially applicable anti-takeover or similar statute or regulation, (v) within three business days following Parent’s written request to do so, fail to publicly recommend against any Acquisition Proposal that is a tender offer or exchange offer for Shares within 10 business days after commencement of such offer (and at all times thereafter during which any such tender offer or exchange offer is pending) and reaffirm the Silicon Image Board Recommendation within such 10 business day-period (and at all times thereafter during which any such tender offer or exchange offer is pending), (vi) fail to include the Silicon Image Board Recommendation in the Schedule 14D-9, or (vii) resolve, agree or publicly propose to take any of the foregoing actions (any action described in the preceding clauses (i), (ii), (iii), (iv), (v) or (vi) being referred to in this Offer to Purchase as a “Silicon Image Board Recommendation Change”); provided, however, that a “stop, look and listen” communication by the Silicon Image Board pursuant to and in compliance with Rule 14d-9(f) of the Exchange Act shall not be deemed to be a Silicon Image Board Recommendation Change. The Silicon Image Board may effect a Silicon Image Board Recommendation Change with respect to any sale Acquisition Proposal at any time prior to the Acceptance Time, if the Silicon Image Board has received a bona fide, written Acquisition Proposal that constitutes a Superior Proposal that has not been withdrawn and: • neither Silicon Image nor any of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions its subsidiaries has breached or negotiations).
(c) Notwithstanding the foregoing, the restrictions violated its obligations described in this Section 5.2 shall not apply (i) 11—“The Merger Agreement; Other Agreements—Merger Agreement—Acquisition Proposals,” with respect to such Acquisition Proposal or any discussions person making such Acquisition Proposal, • the Silicon Image Board has determined in good faith (after consultation with outside legal counsel and after considering any counter-offer or negotiations proposal made by Parent), that, in light of the foregoing Superior Proposal, the failure by the Silicon Image Board to effect a Silicon Image Board Recommendation Change would reasonably be expected to constitute a breach of its fiduciary duties to Silicon Image stockholders under Delaware law; • prior to effecting such Silicon Image Board Recommendation Change, the Silicon Image Board has given Parent at least three business days prior written notice thereof, which notice attaches such Superior Proposal, identities the person making such Superior Proposal, describes the terms and conditions of such Superior Proposal in reasonable detail, and provides Parent with the opportunity to meet with the Silicon Image Board and its outside legal counsel to discuss a modification of the terms and conditions of the Merger Agreement; and • Parent has not made, within two business days after its receipt of Silicon Image’s written notice of its intention to effect a Silicon Image Board Recommendation Change, a counter-offer or proposal that the Silicon Image Board has determined in good faith (after consultation with a financial advisor of nationally recognized standing and its outside legal counsel) is at least as favorable to Silicon Image’s stockholders as such Superior Proposal. Table of Contents Parent and Silicon Image have agreed that every subsequent material revision or material modification to any such Superior Proposal shall require a new written notice thereof by Silicon Image to Parent and a new two business day “matching” period following the initial three business day “matching” period. In addition, following or concurrent with a Silicon Image Board Recommendation Change, authorize Silicon Image to terminate the Merger Agreement and enter into a definitive agreement providing for an Acquisition Transaction with respect to a Superior Proposal (if concurrently with entering into such agreement, Silicon Image terminates the transfer Merger Agreement pursuant to the Merger Agreement). Silicon Image is obligated to keep confidential any such counter-offers or proposals made by Parent to revise the terms of Shares permitted the Merger Agreement, except to the extent required to be disclosed in any SEC reports or pursuant to applicable law or stock exchange listing requirement. To the extent that any “matching” period would expire after the Expiration Time, the Expiration time shall be automatically extended such that it will occur on the first business day after the expiration of such “matching” period. In addition, the Silicon Image Board may effect a Silicon Image Board Recommendation Change at any time prior to the Acceptance Time in response to an Intervening Event (as defined below) if: • an Intervening Event has occurred; • neither Silicon Image nor any of its subsidiaries has breached or violated the provisions of this Section 11—“The Merger Agreement; Other Agreements—Merger Agreement—Acquisition Proposals”; • the Silicon Image Board has determined in good faith (after consultation with outside legal counsel) that, in light of such Intervening Event, the failure by Section 2.3the Silicon Image Board to effect a Silicon Image Board Recommendation Change would reasonably be expected to constitute a breach of its fiduciary duties to Silicon Image’s stockholders under Delaware law; • prior to effecting such Silicon Image Board Recommendation Change, or the Silicon Image Board has given Parent at least three business days prior written notice thereof specifying the material facts underlying the Silicon Image Board’s determination that an Intervening Event has occurred and the rationale and basis for such Silicon Image Board Recommendation Change and giving Parent the opportunity to meet with Silicon Image’s outside legal counsel with the purpose and intent of enabling Parent and Silicon Image to discuss in good faith a modification of the terms and conditions of the Merger Agreement so as to obviate the need to effect a Silicon Image Board Recommendation Change on the basis of such Intervening Event; and • following the expiration of such three business day period, the Silicon Image Board has determined in good faith (iiafter consultation with outside legal counsel) with respect and after giving consideration to any discussions between offer or proposal from Parent, that, in light of such Intervening Event, the Stockholder, on failure by the one hand, and any Affiliate or Representative Silicon Image Board to effect a Silicon Image Board Recommendation Change would reasonably be expected to constitute a breach of Stockholder on the other hand.its fiduciary duties to Silicon Image’s stockholders under Delaware law. For purposes of this Offer to Purchase:
Appears in 1 contract
Acquisition Proposals. (a) Stockholder agrees that neither it nor any of its controlled Affiliates (other than the The Company or its Subsidiaries) shallshall not, and shall not authorize cause its Subsidiaries and every director, officer or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall or any of its Subsidiaries, agents or representatives not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, (i) initiate, encourage, solicit, assist, induce solicit or facilitate any inquiries with respect to, or the makingmaking of, submission or announcement of any Acquisition Inquiry or an Acquisition Proposal; , (ii) furnish engage in any negotiations concerning, or otherwise provide access to any confidential information regarding or data to, or have any Acquired Company to discussions with, any Person in connection with or in response relating to any Acquisition Inquiry or an Acquisition Proposal; , (iii) engage in discussions approve or negotiations with any Person with respect recommend or propose publicly to approve or recommend, any Acquisition Inquiry or Acquisition Proposal; Proposal or (iv) otherwise facilitate any effort approve or attempt recommend, or propose to make approve or implement an Acquisition Inquiry recommend, or Acquisition Proposal execute or enter into into, any letter of intent, agreement in principle, letter of intent, memorandum of understanding, term sheetmerger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract agreement relating to any Acquisition Inquiry Proposal or propose publicly or agree to do any of the foregoing relating to any Acquisition Proposal.
(b) Upon Nothing contained in this Agreement shall prevent the execution hereofCompany or the Board of Directors of the Company from complying with its obligations under applicable Law with respect to disclosure of information to holders of Shares in regard to an Acquisition Proposal that has been received by the Company; provided, Stockholder however, that notwithstanding the foregoing, any such disclosure which has the effect of (i) withdrawing, modifying or qualifying in a manner adverse to Parent the approval of this Agreement or the other matters comprising the Company Shareholder Approval by the Board of Directors of the Company or the recommendation of the Board of Directors of the Company to holders of Shares to approve this Agreement and the Amalgamation Agreement and the other matters comprising the Company Shareholder Approval shall be deemed to be a withdrawal or adverse modification or qualification of such recommendation and (ii) recommending or approving any Acquisition Proposal shall be deemed to be a recommendation or approval thereof.
(c) Section 3.2(a) notwithstanding, the Company may at any time prior to, but not after, the Company Shareholder Approval has been received, (i) provide information in response to a request therefor by, or engage in any negotiations or discussions with, a Person who has made an unsolicited bona fide written Acquisition Proposal that is made after the date of this Agreement that is not procured in violation of Section 3.2(a) if the Board of Directors of the Company receives from such Person an executed confidentiality agreement on customary terms no less favorable to the Company than the Confidentiality Agreement, dated March 29, 2004, between Parent and Apollo Management V, L.P. (the “Confidentiality Agreement”) excluding any standstill provisions thereof; or (ii) recommend such an unsolicited bona fide written Acquisition Proposal to the holders of Shares, if and only to the extent that, (1) in each such case referred to in clause (i) or (ii) above, the Board of Directors of the Company determines in good faith after consultation with outside legal counsel that such action is necessary in order for its directors to comply with their respective fiduciary duties under applicable Law, (2) in the case of clause (i) above, the Board of Directors of the Company determines in good faith after consultation with outside legal counsel and outside financial advisors that such Acquisition Proposal is a Superior Proposal, or is reasonably likely to result in a Superior Proposal; and (3) in the case of clause (ii) above, (A) the Board of Directors of the Company determines in good faith after consultation with outside legal counsel and outside financial advisors that such Acquisition Proposal (in the form, other than immaterial changes, that was the subject of the Superior Proposal Notice, as defined below) constitutes a Superior Proposal, (B) Parent shall have received written notice (the “Superior Proposal Notice”) of the Company’s intention to take the action referred to in clause (ii) at least three business days prior to the taking of such action by the Company (the “Waiting Period”) and (C) at the expiration of the Waiting Period the Board of Directors of the Company continues to believe after consultation with outside legal counsel and outside financial advisors and after taking into account any modifications to the terms of the transaction contemplated by this Agreement that are proposed by Parent (and taking into account whether such modifications are proposed in a legally binding offer) after its receipt of the Superior Proposal Notice (with respect to which modifications the Company and Parent shall endeavor to negotiate in good faith), that such Acquisition Proposal continues to constitute a Superior Proposal.
(d) The Company agrees that it will immediately cease and cause to be terminated all any existing activities, discussions or negotiations with any parties Person (other than Parent and its Affiliatesthe parties hereto) conducted heretofore with respect to any Acquisition Inquiry or Acquisition Proposal or sale Proposal. The Company agrees that it will promptly inform the officers, directors and Representatives of Shares held by Stockholderthe Company and its Subsidiaries of the obligations undertaken in this Section 3.2. The Company also agrees promptly, and shall refrain from engaging but in any future discussions event, within two business days after the date of this Agreement, to request the return or negotiations between Stockholder destruction of all confidential information and materials provided to any Person (other than Parent and the parties hereto) since January 1, 2004 for the purpose of its Affiliates) or their consideration of making a proposal or engaging in a transaction with respect to any sale the Company of any Shares held by Stockholder (other than to state a type that Stockholder is currently not permitted to engage in such discussions or negotiations)would be an Acquisition Proposal if made after the date hereof.
(ce) Notwithstanding From and after the foregoingexecution of this Agreement, the restrictions Company shall promptly, orally notify Parent of any request for information or any inquiries, proposals or offers relating to an Acquisition Proposal (which shall include any Acquisition Proposal made prior to the date hereof only if the Person who made such proposal or offer makes known to the Company or its Representatives, or publicly discloses, that such Person remains interested in this Section 5.2 pursuing such proposal or offer after the date hereof), indicating, in connection with such notice, the name of such Person making such request, inquiry, proposal or offer and the material terms and conditions of any proposals or offers and the Company shall not apply (i) with respect provide to Parent written notice of any discussions such inquiry, proposal or negotiations offer within 24 hours of such event. The Company shall keep Parent informed orally on a reasonably current basis of the status of any Acquisition Proposal of the types referred to in the immediately preceding sentence, including with respect to the transfer status and terms of any such proposal or offer and whether any such proposal or offer has been withdrawn or rejected and the Company shall provide to Parent written notice of any such material developments within 24 hours. The Company also agrees to provide any non-ministerial information to Parent that it is providing to another Person pursuant to Section 3.2(c) at substantially the same time it provides such information to such other Person, unless Parent has already been provided such information. The Company acknowledges that with respect to the parties hereto, all provisions relating to the type of activities specified in clauses 8(i) through (vi) of the Confidentiality Agreement are hereby waived.
(f) Without limiting the foregoing, it is understood that any violation of the restrictions set forth in this Section 3.2 by any officer or director of the Company or any of its Subsidiaries or any Representative of the Company or any of its Subsidiaries, whether or not such Person is purporting to act on behalf of the Company or any of its Subsidiaries or otherwise, shall be deemed to be a breach of this Section 3.2 by the Company.
(g) Notwithstanding anything to the contrary contained herein, this Agreement and the Amalgamation Agreement shall be submitted to the holders of Shares permitted for the purposes of considering and if thought fit approving this Agreement and the Amalgamation Agreement, regardless of the recommendation or any change in the recommendation of the Board of Directors of the Company with respect thereto.
(h) For purposes of this Agreement, the term (i) “Acquisition Proposal” means any proposal or offer, other than one made by Section 2.3Parent or any of its affiliates, with respect to (1) a merger, reorganization, share exchange, consolidation, business combination, recapitalization, dissolution, liquidation, amalgamation or similar transaction involving the Company, (2) any acquisition (whether direct or beneficial) purchase of an equity interest (including by means of a tender or exchange offer) representing an amount equal to or greater than a 10% voting or economic interest in the Company, or (3) any purchase of assets, securities or ownership interests representing an amount equal to or greater than 10% of the consolidated assets of the Company and its Subsidiaries taken as a whole (including stock of the Subsidiaries of the Company, and (ii) “Superior Proposal” means a bona fide written Acquisition Proposal (except that references in the definition of “Acquisition Proposal” to “10%” shall be replaced by “50%”) made by a Person or group (other than a party hereto) that the Board of Directors of the Company (after consultation with respect its outside financial advisor and outside counsel) in good faith concludes, taking into account all legal, financial, regulatory and other aspects of the proposal (including the timing of consummation) and the likelihood of obtaining financing and satisfying other conditions (A) is reasonably likely to be consummated in accordance with its terms and (B) if consummated, result in a transaction more favorable to the holders of Shares from a financial point of view than the transaction contemplated by this Agreement and the Amalgamation Agreement (after giving due consideration to any discussions between modifications or improvements to the Stockholder, on terms of the one hand, transaction contemplated by this Agreement that are proposed by Parent (and any Affiliate taking into account whether such modifications or Representative of Stockholder on the other handimprovements are proposed in a legally binding offer)).
Appears in 1 contract
Sources: Transaction Agreement and Plan of Amalgamation (Intelsat LTD)
Acquisition Proposals. (a) From the date hereof until the Termination Date, each Stockholder hereby covenants and agrees that neither it nor any of such Stockholder shall not, and shall cause its controlled Affiliates (other than the Company or and its Subsidiaries) shalland their directors, officers, employees not to, and shall not authorize or permit instruct and use its reasonable best efforts to cause its and its controlled Affiliates’ other Representatives (it being understood thatin each case, for purposes hereof, a Representative in their capacities as representatives of the Company shall Stockholder) not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, indirectly (i) (1) solicit, initiate, encouragepropose, solicit, assist, knowingly induce or facilitate the making, submission or announcement of, or knowingly encourage, facilitate or assist, any inquiry, proposal, indication of any Acquisition Inquiry interest or offer that constitutes or would reasonably be expected to lead to, an Acquisition Proposal; (ii) furnish or otherwise provide access to any information regarding any Acquired Company to any Person (other than Parent, Merger Sub or any designees of Parent or Merger Sub) any non-public information relating to the Company or any of its Subsidiaries or afford to any Person access to the business, properties, assets, books, records or personnel, of the Company or any of its Subsidiaries, in any such case in connection with or in response to any Acquisition Inquiry Proposal or any inquiry, proposal, indication of interest or offer that would reasonably be expected to lead to an Acquisition Proposal; (iii) participate or engage in or continue discussions or negotiations with any Person with respect relating to an Acquisition Proposal (or inquiries, proposals, indications of interest or offers that would reasonably be expected to lead to an Acquisition Proposal) (in each case, other than informing such Persons of the existence of the provisions contained in this Section 3.1 and contacting the Person who has made any Acquisition Inquiry Proposal solely in order to clarify the terms of the Acquisition Proposal in connection with determining whether the Acquisition Proposal constitutes or would be reasonably expected to lead to a Superior Proposal); (iv) approve, endorse or recommend an Acquisition Proposal; or (ivv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheetmerger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any an Acquisition Inquiry or Acquisition Proposal.
(b) Upon Transaction. Immediately upon the execution hereofof this Agreement, each Stockholder will cease and shall cause each of its controlled Affiliates and each of its and its controlled Affiliates’ directors, officers and employees to, and shall instruct and use its reasonable best efforts to cause its and its controlled Affiliates’ other Representatives to immediately cease and cause to be terminated all existing activitiesany discussions, discussions communications or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than the parties hereto and their respective Representatives) relating to an Acquisition Proposal (or inquiries, proposals, indications of interest or offers that could reasonably be expected to lead to an Acquisition Proposal). Notwithstanding anything in this Section 3.1 to the contrary, each Stockholder may, at the Company’s request and with substantially concurrent notice to Parent and its Affiliates) (which notice shall include the identity of the Person who has made the applicable Acquisition Proposal), engage in discussions with any Person who has made an Acquisition Proposal with respect to any sale which the Company Board is engaging in negotiations or discussions pursuant to and in compliance with Section 5.3 of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in the Merger Agreement, solely for the purpose of entering into a voting agreement with such discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect Person on substantially similar terms to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other handterms hereof.
Appears in 1 contract
Sources: Voting Agreement (Moneylion Inc.)
Acquisition Proposals. (a) Stockholder agrees that neither it nor any of its controlled Affiliates (other than the The Company or its Subsidiaries) shallshall not, and shall not authorize cause its Subsidiaries and its and its Subsidiaries’ directors, officers, and employees and shall direct and use reasonable best efforts to cause the attorneys, accountants, investment bankers and other advisors or permit its Representatives representatives (it being understood thatcollectively, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder “Representatives”) of the Company and its Subsidiaries not as an officer, director or employee of the Company) to, directly or indirectly, (i) initiate, encourage, solicit, assist, solicit or knowingly induce or encourage or otherwise knowingly facilitate (including by providing non-public information relating to the makingCompany and its Subsidiaries) any inquiries with respect to, submission or announcement of the making of, any Acquisition Inquiry Proposal or any inquiry, offer or proposal that would reasonably be expected to lead to an Acquisition Proposal; , (ii) furnish engage, continue or otherwise participate in any negotiations or discussions concerning, or provide access to its properties, books and records or any confidential or nonpublic information regarding any Acquired Company to or data to, any Person in connection with with, relating to or for the purpose of encouraging or facilitating an Acquisition Proposal or any inquiry, offer or proposal that would reasonably be expected to lead to an Acquisition Proposal, (iii) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Acquisition Proposal, or (iv) execute or enter into any letter of intent, agreement in response principle, merger agreement, acquisition agreement or other similar written or oral agreement relating to any Acquisition Inquiry Proposal, and the Company shall not resolve or agree to do any of the foregoing. Without limiting the foregoing, it is agreed that any violation of any of the restrictions set forth in the preceding sentence by any Representatives of the Company or any of its Subsidiaries shall be a breach of this Section 5.4(a). The Company shall, shall cause each of its Subsidiaries and internal Representatives to, and shall direct and use its best efforts to cause each of its external Representatives to, immediately cease and cause to be terminated any solicitations, discussions or negotiations or other activities with any Person (other than Parent and the Merger Subs) in connection with an Acquisition Proposal; . The Company also agrees that it will promptly request each Person (iiiother than Parent and the Merger Subs) engage that has prior to the date hereof executed a confidentiality agreement in connection with its consideration of an Acquisition Proposal to promptly return or destroy all confidential information furnished to such Person by or on behalf of it or any of its Subsidiaries prior to the date hereof in accordance with the terms of the applicable confidentiality agreement, and shall terminate access to data rooms furnished in connection therewith. The Company shall promptly (and in any event within twenty-four (24) hours) notify Parent orally and in writing of the receipt by the Company or its Representatives of any inquiries, proposals or offers, any requests for information, or any requests for discussions or negotiations with the Company or any Person of its Representatives, in each case with respect to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter any offer, inquiry or proposal that would reasonably be expected to lead to an Acquisition Proposal, which notice shall include a summary of the material terms and conditions of, and the identity of the Person making, such Acquisition Proposal, inquiry, proposal or offer, and copies of any such written requests, proposals or offers, including proposed agreements, and thereafter shall keep Parent reasonably informed, on a current basis (and in any event within twenty-four (24) hours), of any material developments regarding any Acquisition Proposals or any material change to the terms and status of any such Acquisition Proposal. The Company agrees that neither it nor any of its Subsidiaries shall terminate, waive, amend, release or modify any provision of any existing standstill or similar agreement to which it or one of its Subsidiaries is a party, except that prior to, but not after, obtaining the Company Requisite Vote, if after consultation with, and taking into account the advice of, outside legal counsel, the Company Board determines that the failure to take such action would be reasonably likely to be a violation of its fiduciary duties under applicable Law, the Company may waive any agreement such standstill provision solely to the extent necessary to permit a third party to make, on a confidential basis, to the Company Board, an Acquisition Proposal conditioned upon such third party agreeing that the Company shall not be prohibited from providing any information to Parent (including regarding any such Acquisition Proposal) in principle, letter accordance with and otherwise complying with this Section 5.4. The Company shall promptly after the date of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating this Agreement terminate any waiver that may have heretofore been granted to any Person other than Parent or a Merger Sub under any confidentiality and standstill provisions of any confidentiality agreement entered into with respect to an Acquisition Inquiry Proposal or any offer, inquiry or proposal that would reasonably be expected to lead to an Acquisition Proposal.
(b) Upon Notwithstanding anything to the execution hereofcontrary herein, Stockholder nothing contained herein shall immediately cease prevent the Company or the Company Board from:
(i) taking and cause disclosing to its stockholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act (or any similar communication to stockholders in connection with the making or amendment of a tender offer or exchange offer), in each case, to the extent legally required, or from making any other disclosure to stockholders if, after consultation with, and taking into account the advice of, outside legal counsel, the Company Board determines that the failure to make such disclosure would be reasonably likely to be terminated all existing activities, discussions or negotiations with any parties a violation of its fiduciary duties under applicable Law (other than Parent and its Affiliates) conducted heretofore with respect to provided that neither the Company nor the Company Board may recommend any Acquisition Inquiry Proposal unless expressly permitted by Section 5.4(c), and provided, further, that any such disclosure that has the substantive effect of withdrawing or adversely modifying the Recommendation shall be deemed to be a Change of Recommendation); provided, further, that the issuance by the Company or the Company Board of a “stop, look and listen” communication as contemplated by Rule 14d-9(f) promulgated under the Exchange Act (or any similar communication to its stockholders) in which the Company indicates that the Company Board has not changed the Recommendation shall not constitute a Change of Recommendation;
(ii) prior to, but not after, obtaining the Company Requisite Vote, (1) providing access to its properties, books and records and providing information or data or (2) engaging in negotiations or discussions, in each case in response to a request therefor by a Person or group who has made a bona fide written Acquisition Proposal that was made after the date hereof and was not initiated, solicited, encouraged or sale of Shares held by Stockholderfacilitated in, and did not otherwise arise from a, violation of Section 5.4 or any other violation of this Agreement, if the Company Board (A) shall refrain have determined in good faith, after consultation with the Company’s outside legal counsel and financial advisor, that such Acquisition Proposal is reasonably expected to constitute, result in or lead to a Superior Proposal, (B) shall have determined in good faith, after consultation with, and taking into account the advice of, outside legal counsel, that the failure to provide such access or engage in such negotiations or discussions would be reasonably likely to be a violation of its fiduciary duties under applicable Law and (C) has received from engaging in any future discussions the Person so requesting such information or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations an executed Acceptable Confidentiality Agreement; provided, that any such access, information or data has previously been provided to Parent or is provided to Parent prior to or substantially concurrently with the time such access, information or data is provided to such Person or group; provided, further, that, without limiting the requirements set forth in Section 5.4(a), the Company shall promptly, and in any event within twenty-four (24) hours, notify Parent if the Company furnishes any such access, information or data to Parent and/or enters into any discussions or negotiations; and
(iii) prior to, but not after, obtaining the Company Requisite Vote, making a Change of Recommendation (but only if permitted by Section 5.4(c)).
(c) Notwithstanding anything herein to the foregoingcontrary, if, at any time prior to, but not after, obtaining the Company Requisite Vote, the restrictions Company Board determines in good faith, after consultation with the Company’s financial advisor and outside legal counsel, in response to a bona fide written Acquisition Proposal that was made after the date hereof and was not initiated, solicited, encouraged or facilitated in, and did not otherwise arise from a, violation of Section 5.4 or any other violation of this Section 5.2 shall not apply Agreement, that such Acquisition Proposal constitutes a Superior Proposal (taking into account any adjustment to the terms and conditions of this Agreement proposed in writing by Parent and the Merger Subs in response to such Acquisition Proposal or otherwise) and, after consultation with outside legal counsel, the failure to take the action in (i) or (ii) below would be reasonably likely to be a violation of the Company Board’s fiduciary duties under applicable Law, the Company or the Company Board may (i) terminate this Agreement pursuant to Section 8.1(d)(ii) to enter into a definitive agreement with respect to such Superior Proposal or (ii) (1) withdraw, modify, qualify in any discussions manner adverse to Parent or change the Recommendation, or formally resolve to effect or publicly announce an intention to effect any of the foregoing or (2) approve, endorse or recommend or propose publicly to approve, endorse or recommend, an Acquisition Proposal (either, a “Change of Recommendation”); provided, however, that, if the Company terminates the Agreement pursuant to Section 8.1(d)(ii), the Company pays to Parent the Company Termination Fee required to be paid pursuant to Section 8.3(b)(i) concurrently with or prior to such termination; provided further that the Company will not be entitled to enter into such definitive agreement and to terminate this Agreement in accordance with Section 8.1(d)(ii) or effect a Change of Recommendation pursuant to this paragraph unless (x) the Company delivers to Parent a written notice (a “Company Notice”), advising Parent that the Company Board proposes to take such action and containing the material terms and conditions of the Superior Proposal that is the basis of the proposed action by the Company Board (including the identity of the party making such Superior Proposal and copies of any written proposals or offers, including proposed agreements) and (y) at or after 11:59 p.m., New York City time, on the fourth (4th) Business Day immediately following the day on which the Company delivered the Company Notice (such period from the time a Company Notice is provided until 11:59 p.m. New York City time on the fourth (4th) Business Day immediately following the day on which the Company delivered the Company Notice, the “Notice Period”), the Company Board reaffirms in good faith (after consultation with the Company’s outside legal counsel and financial advisor and taking into account any adjustment to the terms and conditions of this Agreement proposed in writing by Parent during the Notice Period) that such Acquisition Proposal continues to constitute a Superior Proposal and, after consultation with outside legal counsel, that the failure to take such action would be reasonably likely to be a violation of the Company Board’s fiduciary duties under applicable Law. If requested by Parent, the Company will, and will cause its Representatives to, during the Notice Period, engage in good faith negotiations with Parent and its Representatives to make such adjustments in the terms and conditions of this Agreement so that such Acquisition Proposal would cease to constitute a Superior Proposal. Any amendment to the financial terms or any other material amendment to the terms and conditions of a proposed agreement relating to a Superior Proposal will be deemed to be a new proposal or proposed agreement relating to a Superior Proposal for purposes of this Section 5.4(c) requiring a new Company Notice and an additional Notice Period, provided that the applicable Notice Period shall end at 11:59 p.m., New York City time, on the second (2nd) Business Day immediately following the day on which the Company delivered the Company Notice (it being understood and agreed that in no event shall any such additional Notice Period be deemed to shorten the initial four (4) Business Day Notice Period). Notwithstanding anything herein to the contrary, at any time prior to but not after obtaining the Company Requisite Vote, the Company Board may effect a Change of Recommendation referred to in clause (1) of such definition (other than in response to the receipt or making of an Acquisition Proposal) if there exists, with respect to the transfer Company or its Subsidiaries, any event, development, change, effect or occurrence that was not known by the Company Board or, if known, the consequences of Shares permitted by Section 2.3which were not known or reasonably foreseeable, or (ii) with respect to any discussions between as of the Stockholder, on the one handdate of this Agreement, and the Company Board shall have determined in good faith, after consultation with, and taking into account the advice of, outside legal counsel, that the failure of the Company Board to effect such a Change of Recommendation would be reasonably likely to be a violation of its fiduciary duties under applicable Law; provided, that the Company will not be entitled to effect such a Change of Recommendation pursuant to this sentence unless (1) the Company delivers to Parent a Company Notice advising Parent that the Company Board proposes to take such action and specifying, in reasonable detail, the reasons therefor and (2) at or after the end of the Notice Period, the Company Board reaffirms in good faith (after consultation with its outside legal counsel and financial advisors and taking into account any Affiliate or Representative adjustment to the terms and conditions of Stockholder on this Agreement proposed in writing by Parent during the other handNotice Period) that, taking into account the advice of outside legal counsel, the failure to effect such a Change of Recommendation pursuant to this sentence would be reasonably likely to be a violation of the Company Board’s fiduciary duties under applicable Law. If requested by Parent, the Company will, and will cause its Representatives to, during the Notice Period, engage in good faith negotiations with Parent and its Representatives to make such adjustments in the terms and conditions of this Agreement so that the Company Board shall not make the determination referred to in clause (2) of the immediately preceding sentence at the end of the Notice Period.
(d) For purposes of this Agreement, the following terms shall have the meanings assigned below:
Appears in 1 contract
Acquisition Proposals. (a) Stockholder agrees that neither it nor any From the date of its controlled Affiliates (other than this Agreement until the Company or its Subsidiaries) shallClosing Date or, and shall not if earlier, the termination of this Agreement, the Acquiror will not, authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative the any representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) Acquiror to, directly or indirectly, : (i) solicit, initiate, knowingly encourage, solicit, assist, induce or facilitate the making, submission or announcement of any Acquisition Inquiry Competing Transaction Proposal from any Person (other than Acquiree or Acquisition the Acquiree Shareholders, a “Third Party”) or take any action that could reasonably be expected to lead to a Competing Transaction Proposal; , (ii) furnish or otherwise provide access to any information regarding any Acquired Company the Acquiror to any Person Third Party in connection with or in response to any Acquisition Inquiry a Competing Transaction Proposal or Acquisition Proposal; an inquiry or indication of interest, (iii) engage in or continue any discussions or negotiations with any Person Third Party with respect to any Acquisition Inquiry or Acquisition Competing Transaction Proposal; or , (iv) otherwise facilitate approve, endorse or recommend any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Competing Transaction Proposal or (v) enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement intent or other similar document or any Contract contemplating or otherwise relating to any Acquisition Inquiry or Acquisition Competing Transaction Proposal.
(b) Upon Concurrently with the execution hereofof this Agreement, Stockholder Acquiror and the Acquiror Principal Shareholders shall (i) immediately cease and cause to be terminated all any existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect Person that relate to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or Competing Transaction Proposal; (ii) as soon as practicable request each Person that has executed, within twelve (12) months prior to the date of this Agreement, a confidentiality agreement in connection with respect its consideration of a possible Competing Transaction Proposal to return or destroy all confidential information relating to the Acquiror heretofore furnished to such Person by or on behalf of any discussions Acquiror Principal Shareholder or the Acquiror, subject to whatever rights, if any, that such Person has to retain any such information or avoid any demand for its return or destruction pursuant to the terms of the confidentiality agreement between the Stockholder, on the one hand, such Person and any Affiliate Acquiror Principal Shareholder or Representative of Stockholder on the Acquiror; and (iii) cause any physical or virtual data room containing any such information to no longer be accessible to or by any Person other handthan Acquiree, the Acquiree Shareholders and their respective representatives.
Appears in 1 contract
Acquisition Proposals. (a) Stockholder agrees that neither it nor any After the date hereof and prior to the Effective Time or earlier termination of its controlled Affiliates (other than the Company or its Subsidiaries) shallthis Agreement, unless Seller shall otherwise agree in writing, Parent shall not, and shall not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an any officer, director or employee or any investment banker, attorney, accountant or other agent, advisor or representative of the Company) Parent or any of its Subsidiaries or Affiliates over which it exercises control to, directly or indirectly, (i) initiate, solicit, negotiate, encourage, solicit, assist, induce or provide confidential information to facilitate the making, submission or announcement making of any Acquisition Inquiry or Acquisition Proposal; Proposal (as defined in Section 6.3(b) hereof), (ii) furnish or otherwise provide access to enter into any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person agreement with respect to any Acquisition Inquiry Proposal or give any approval of the type referred to in Section 6.3(b) with respect to any Acquisition Proposal or (iii) participate in any discussions regarding any Acquisition Proposal; provided, however, that, in response to any unsolicited Acquisition Proposal, Parent and its Subsidiaries may (at any time prior to the Parent Stockholder Approvals) furnish information concerning its business, properties or assets to the Person (iva "Potential Acquiror") otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or making such Acquisition Proposal and participate in negotiations with the Potential Acquiror if (x) Parent's Board of Directors is advised by one or enter into any agreement more of its independent financial advisors that such Potential Acquiror has the financial wherewithal to consummate such a potential Acquisition Proposal, (y) Parent's Board of Directors reasonably determines, after receiving advice from Parent's financial advisor, that such Acquisition Proposal would involve consideration to Parent's stockholders and other terms that taken as a whole are superior to the Distribution and the Merger, and (z) based upon advice of counsel to such effect, Parent's Board of Directors determines in principlegood faith that it is necessary to so furnish information and negotiate in order to comply with its fiduciary duty to stockholders of Parent; provided, letter further, that nothing herein shall prevent Parent's Board of intentDirectors from taking, memorandum of understandingand disclosing to Parent's stockholders, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating a position contemplated by Rules 14D-9 and 14e-2 promulgated under the Exchange Act with regard to any Acquisition Inquiry tender offer. In the event Parent shall determine to provide any information as described above, or shall receive any offer of the type referred to in this Section 6.3, it shall promptly inform Seller orally or in writing as to the fact that information is to be provided and shall furnish to Seller a description of the material terms thereof. Parent will keep Seller informed of the status and material details (including amendments or proposed amendments of any such proposed Acquisition Proposal).
(b) Upon For purposes of this Agreement, the execution hereofterm "Acquisition Proposal" means any bona fide proposal, Stockholder shall immediately cease and cause in writing, made by a Person to be terminated all existing activitiesacquire beneficial ownership (as defined under Rule 13(d) of the Exchange Act), discussions pursuant to a merger, consolidation or negotiations with other business combination, sale of shares of capital stock, sale of assets, tender offer or exchange offer or similar transaction, involving Parent, the Retained Subsidiaries or the Retained Business, including any parties single or multi-step transaction or series of related transactions (other than Parent the transactions contemplated by this Agreement and its Affiliatesthe Distribution Agreement) conducted heretofore with respect which is structured to permit such Person to acquire beneficial ownership of any Acquisition Inquiry material portion of the assets of, or Acquisition Proposal or sale any material portion of Shares held by Stockholder, and shall refrain from engaging the equity interest in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding the foregoingParent, the restrictions in this Section 5.2 Retained Subsidiaries or the Retained Business; provided, however, that the term "Acquisition Proposal" shall not apply (i) with respect to include any discussions transaction or negotiations with respect series of transactions which relate solely to the transfer businesses to be owned by Spinco and the Spinco Subsidiaries following the Distribution so long as the consummation of Shares permitted by such transaction or transactions (x) would not reasonably be anticipated to adversely affect or delay the consummation of the Merger, the Distribution or the transactions contemplated hereby and (y) could not cause Spinco to cease to be engaged in the conduct of the active trade or businesses relied upon for the purposes of satisfying the requirements of Section 2.3, or (ii355(b) with respect to any discussions between for purposes of the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other handruling request described in Section 6.12.
Appears in 1 contract
Acquisition Proposals. (a) Stockholder Each of First Busey and Main Street agrees that neither it nor any of will not, and will cause its controlled Affiliates (other than the Company or respective Subsidiaries and its and its Subsidiaries) shall’ officers, directors, agents, advisors and shall affiliates not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, (i) initiate, encourage, solicit, assistencourage or knowingly facilitate inquiries or proposals with respect to, induce or facilitate the makingengage in any negotiations concerning, submission or announcement of provide any Acquisition Inquiry confidential or nonpublic information or data to, or have any discussions with, any person relating to, any Acquisition Proposal; provided that, in the event First Busey or Main Street receives an unsolicited bona fide Acquisition Proposal, from a person other than First Busey, Main Street, as applicable, or an Other Person (ii) as defined below), after the execution of this Agreement, and the applicable First Busey Board or Main Street Board concludes in good faith that such Acquisition Proposal constitutes a Superior Proposal or would reasonably be likely to result in a Superior Proposal and, after considering the advice of outside counsel, that failure to take such actions would result in a violation of the directors’ fiduciary duties under applicable law, First Busey or Main Street, as applicable, may, and may permit its respective Subsidiaries and its respective Subsidiaries’ Representatives to, furnish or otherwise provide access cause to be furnished nonpublic information and participate in such negotiations or discussions; provided that prior to providing any nonpublic information regarding any Acquired Company permitted to any Person in connection be provided pursuant to the foregoing proviso, it shall have entered into a confidentiality agreement with or in response such third party on terms no less favorable to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating to any Acquisition Inquiry or Acquisition Proposal.
(b) Upon it than the execution hereof, Stockholder shall Confidentiality Agreement. Each party will immediately cease and cause to be terminated all existing any activities, discussions or negotiations conducted before the date of this Agreement with any parties (persons other than Parent and its AffiliatesFirst Busey or Main Street, as applicable (“Other Persons”) conducted heretofore with respect to any Acquisition Inquiry Proposal and will use its reasonable best efforts to enforce any confidentiality or similar agreement relating to an Acquisition Proposal. Each party will within one business day advise the other party following receipt of any Acquisition Proposal or sale and the substance thereof (including the identity of Shares held by Stockholderthe person making such Acquisition Proposal), and will keep the other party apprised of any related developments, discussions and negotiations (including the material terms and conditions of the Acquisition Proposal) on a current basis.
(b) Nothing contained in this Agreement shall refrain prevent Main Street or the Main Street Board or First Busey or the First Busey Board from engaging in any future discussions or negotiations between Stockholder complying with Rule 14d-9 and any Person (other than Parent and its Affiliates) Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal, provided that such Rules will in no way eliminate or modify the effect that any sale of any Shares held by Stockholder (other than action pursuant to state that Stockholder is currently not permitted to engage in such discussions or negotiations)Rules would otherwise have under this Agreement.
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other hand.
Appears in 1 contract
Acquisition Proposals. (a) Stockholder Without limiting GBC’s other obligations under this Agreement (including under Article VI hereof), subject to Section 7.5(c) below, GBC agrees that from and after the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Article IX, neither it nor any of its controlled Affiliates Subsidiaries shall, and it shall use its reasonable best efforts to cause its and its Subsidiaries’ officers, directors, employees, agents and representatives (other than the Company including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) shall, and shall not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, (i) initiate, encourage, solicit, assist, induce encourage or knowingly facilitate (including by way of furnishing information) any inquiries or the making, submission or announcement making of any proposal or offer with respect to, or a transaction to effect, any GBC Acquisition Inquiry or Acquisition Proposal; Proposal (as defined below), (ii) furnish have any discussions with or otherwise provide access to any confidential information regarding any Acquired Company or data to any Person in connection with or in response relating to any Acquisition Inquiry or a GBC Acquisition Proposal; (iii) , or engage in discussions or any negotiations with any Person with respect to any Acquisition Inquiry or concerning a GBC Acquisition Proposal; , or (iv) otherwise knowingly facilitate any effort or attempt to make or implement an a GBC Acquisition Inquiry Proposal, (iii) approve, recommend, agree to or accept, or propose publicly to approve, recommend, agree to or accept, any GBC Acquisition Proposal Proposal, (iv) approve, recommend, agree to or accept, or propose to approve, recommend, agree to or accept, or execute or enter into into, any letter of intent, agreement in principle, letter of intent, memorandum of understanding, term sheetmerger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement or other similar document or Contract relating agreement related to any GBC Acquisition Inquiry Proposal or Acquisition Proposal(v) waive, amend, modify or grant any release under any standstill or similar agreement or confidentiality agreement (other than the Confidentiality Agreement) to which it or any of its Subsidiaries is a party. Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in the preceding sentence by any of GBC’s Subsidiaries or any of GBC’s or its Subsidiaries’ officers, directors, employees, agents or representatives (including any investment banker, attorney or accountant retained by GBC or its Subsidiaries) shall be a breach of this Section 7.5(a) by GBC.
(b) Upon For purposes of this Agreement, “GBC Acquisition Proposal” means any inquiry, proposal or offer from any Person with respect to (A) a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving GBC or any of its Significant Subsidiaries (as defined in Rule 1-02 of Regulation S-X of the execution hereofSEC), Stockholder shall immediately cease (B) any direct or indirect purchase or sale, lease, exchange, transfer or other disposition of 15% or more of the consolidated assets (including stock of GBC’s Subsidiaries) of GBC and cause to be terminated all existing activitiesits Subsidiaries, discussions taken as a whole, or negotiations (C) any direct or indirect purchase or sale of, or tender or exchange offer for, or similar transaction with respect to, the equity securities of GBC that, if consummated, would result in any parties Person (or the stockholders of such Person) beneficially owning securities representing 15% or more of the total voting power of GBC (or of the surviving parent entity in such transaction), including in the case of each of clauses (A) through (C), any single or multi-step transaction or series of related transactions (other than Parent and its Affiliates) conducted heretofore with respect to any Acquisition Inquiry an inquiry, proposal or Acquisition Proposal offer made by Fortune or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiationsa Subsidiary thereof).
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or (ii) with respect to any discussions between the Stockholder, on the one hand, and any Affiliate or Representative of Stockholder on the other hand.
Appears in 1 contract
Acquisition Proposals. (a) Stockholder agrees that neither it nor any During the period from the date of its controlled Affiliates (other than this Agreement through the Company Closing Date or its Subsidiaries) shallthe termination of this Agreement pursuant to ARTICLE 9, each Target Entity shall not, and shall cause its respective Representatives not authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) to, directly or indirectly, take any action to solicit, encourage (i) including by providing information or assistance), initiate, encourage, solicit, assist, induce facilitate or facilitate the making, submission or announcement of any Acquisition Inquiry or Acquisition Proposal; (ii) furnish or otherwise provide access to any information regarding any Acquired Company to any Person in connection with or in response to any Acquisition Inquiry or Acquisition Proposal; (iii) engage in discussions or negotiations with with, or provide or make available any Person with respect information to any Acquisition Inquiry or Acquisition Proposal; or (iv) otherwise facilitate any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Proposal or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement with any Person (other than a Buyer Entity and their Representatives) concerning any Acquisition Proposal or other similar document or Contract relating inquiry that could reasonably be expected to lead to any Acquisition Inquiry or Acquisition Proposal.
(b) Upon the execution hereof. Each Target Entity shall, Stockholder and shall cause their respective Representatives to, immediately cease and cause to be terminated all existing activitiesdiscussions, discussions or conversations, negotiations and other communications with any parties (other than Parent and its Affiliates) Person conducted heretofore with respect to any Acquisition Inquiry of the foregoing and request the prompt return or Acquisition Proposal or sale destruction of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and all confidential information previously furnished to any Person (other than Parent the Buyer Entities and its Affiliatestheir Representatives) with respect that has made or indicated an intention to make an Acquisition Proposal. If any Target Entity or their respective Representatives receives any request for nonpublic information or any inquiry that could reasonably be expected to lead to any sale Acquisition Proposal, Target shall as promptly as practicable (but in no event more than two Business Days) notify Buyer in writing of any Shares held by Stockholder the receipt of such Acquisition Proposal, request or inquiry and the terms and conditions of such Acquisition Proposal, request or inquiry (other than to state that Stockholder is currently not permitted to engage including, in such discussions or negotiations).
(c) Notwithstanding the foregoingeach case, the restrictions identity of the Person making any such Acquisition Proposal, request or inquiry), and Target shall as promptly as practicable (but in this Section 5.2 shall not apply no event more than two Business Days) provide to Buyer (ia) with respect to any discussions a copy of such Acquisition Proposal, request or negotiations with respect to the transfer of Shares permitted by Section 2.3inquiry, if in writing, or (iib) a written summary of the material terms of such Acquisition Proposal, request or inquiry, if oral. Target shall provide Buyer as promptly as practicable (but in no event more than two Business Days) with respect notice setting forth all such information as is necessary to any discussions between the Stockholder, keep Buyer informed on the one hand, and any Affiliate a current basis in all material respects of all communications regarding (including material amendments or Representative of Stockholder on the other handproposed material amendments to) such Acquisition Proposal request or inquiry.
Appears in 1 contract
Acquisition Proposals. (a) Stockholder agrees that From the date of this Agreement until the Closing Date or, if earlier, the termination of this Agreement, neither it the Acquiror nor any of its controlled Affiliates (other than the Company or its Subsidiaries) shallAcquiror Principal Shareholder will, and shall not neither the Acquiror nor any Acquiror Principal Shareholder will authorize or permit its Representatives (it being understood that, for purposes hereof, a Representative the any representative of the Company shall not constitute a Representative of a Stockholder unless such Stockholder shall have separately engaged Acquiror or directed such Person in his, her or its capacity as a stockholder of the Company and not as an officer, director or employee of the Company) any Acquiror Principal Shareholder to, directly or indirectly, : (i) solicit, initiate, knowingly encourage, solicit, assist, induce or facilitate the making, submission or announcement of any Acquisition Inquiry Competing Transaction Proposal from any Person (other than Acquiree or Acquisition the Acquiree Shareholders, a “Third Party”) or take any action that could reasonably be expected to lead to a Competing Transaction Proposal; , (ii) furnish or otherwise provide access to any information regarding any Acquired Company the Acquiror to any Person Third Party in connection with or in response to any Acquisition Inquiry a Competing Transaction Proposal or Acquisition Proposal; an inquiry or indication of interest, (iii) engage in or continue any discussions or negotiations with any Person Third Party with respect to any Acquisition Inquiry or Acquisition Competing Transaction Proposal; or , (iv) otherwise facilitate approve, endorse or recommend any effort or attempt to make or implement an Acquisition Inquiry or Acquisition Competing Transaction Proposal or (v) enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, option agreement, joint venture agreement, partnership agreement, merger agreement intent or other similar document or any Contract contemplating or otherwise relating to any Acquisition Inquiry or Acquisition Competing Transaction Proposal.
(b) Upon Concurrently with the execution hereofof this Agreement, Stockholder Acquiror and the Acquiror Principal Shareholders shall (i) immediately cease and cause to be terminated all any existing activities, discussions or negotiations with any parties (other than Parent and its Affiliates) conducted heretofore with respect Person that relate to any Acquisition Inquiry or Acquisition Proposal or sale of Shares held by Stockholder, and shall refrain from engaging in any future discussions or negotiations between Stockholder and any Person (other than Parent and its Affiliates) with respect to any sale of any Shares held by Stockholder (other than to state that Stockholder is currently not permitted to engage in such discussions or negotiations).
(c) Notwithstanding the foregoing, the restrictions in this Section 5.2 shall not apply (i) with respect to any discussions or negotiations with respect to the transfer of Shares permitted by Section 2.3, or Competing Transaction Proposal; (ii) as soon as practicable request each Person that has executed, within twelve (12) months prior to the date of this Agreement, a confidentiality agreement in connection with respect its consideration of a possible Competing Transaction Proposal to return or destroy all confidential information relating to the Acquiror heretofore furnished to such Person by or on behalf of any discussions Acquiror Principal Shareholder or the Acquiror, subject to whatever rights, if any, that such Person has to retain any such information or avoid any demand for its return or destruction pursuant to the terms of the confidentiality agreement between the Stockholder, on the one hand, such Person and any Affiliate Acquiror Principal Shareholder or Representative of Stockholder on the Acquiror; and (iii) cause any physical or virtual data room containing any such information to no longer be accessible to or by any Person other handthan Acquiree, the Acquiree Shareholders and their respective representatives.
Appears in 1 contract
Sources: Share Exchange Agreement (Agm Group Holdings, Inc.)