Acquisition Proposals. Prior to the Effective Time, RELP and AIP each agree (i) that neither of them nor any of their Subsidiaries shall, and each of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and (iii) that it will notify the other party immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreement.
Appears in 7 contracts
Sources: Merger Agreement (American Industrial Properties Reit Inc), Merger Agreement (Usaa Income Properties Iii LTD Partnership), Merger Agreement (Usaa Real Estate Income Investments Ii Limited Partnership)
Acquisition Proposals. Prior to the Effective Time, RELP and AIP each agree (i) that neither of them nor any of their Subsidiaries shall, and each of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and (iii) that it will notify the other party immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreement.Board
Appears in 4 contracts
Sources: Agreement and Plan of Merger (American Industrial Properties Reit Inc), Agreement and Plan of Merger (American Industrial Properties Reit Inc), Agreement and Plan of Merger (American Industrial Properties Reit Inc)
Acquisition Proposals. Prior to the Effective Time, RELP and AIP each agree (i) The Company agrees that neither of them it nor any of their Subsidiaries its subsidiaries nor any of the respective officers and directors of the Company or its subsidiaries shall, and each of them the Company shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, subsidiaries) not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholdersshareholders of the Company) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party the Company or any of its Subsidiaries, other than the transactions contemplated by this Agreement subsidiaries (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or or, unless, at any time prior to the adoption of this Agreement by the holders of Company Common Stock, the Company's Board of Directors determines, upon receipt of a written opinion of its outside legal counsel, that it is required to take the following action in order to fulfill their fiduciary duties to the Company's shareholders under the WBCL, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) that it . The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each enforce any confidentiality agreements to which it or any of its subsidiaries is a party. The Company will take the necessary steps to inform the appropriate individuals or entities referred to above in the first sentence hereof of the obligations undertaken in this Section 7.1; and (iii) that it 5.1. The Company will notify (describing the other party relevant facts) Parent immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this AgreementCompany.
Appears in 4 contracts
Sources: Merger Agreement (Citizens Banking Corp), Merger Agreement (F&m Bancorporation Inc), Merger Agreement (F&m Bancorporation Inc)
Acquisition Proposals. Prior to From and after the Effective Timedate hereof --------------------- until the termination of this Agreement, RELP and AIP each agree (i) that neither of them Bayonne or First Savings, nor any of their Subsidiaries shall, and each of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managersdirectors, employees, agentsrepresentatives, agents or affiliates and representatives (including, without limitation, any investment banker, attorney or accountant retained by it Bayonne or any of its Subsidiaries), as applicablewill, not todirectly or indirectly, initiate, solicit or encourageknowingly encourage (including by way of furnishing non-public information or assistance), directly or indirectlyfacilitate knowingly, any inquiries or the making or implementation of any proposal that constitutes, or offer (including, without limitationmay reasonably be expected to lead to, any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involvingAcquisition Proposal (as defined below), or enter into or maintain or continue discussions or negotiate with any purchase person or entity in furtherance of all such inquiries or to obtain an Acquisition Proposal or agree to or endorse any significant portion Acquisition Proposal, or authorize or permit any of the assets its officers, directors or any equity securities (or any debt securities convertible into equity securities) of, such party employees or any of its SubsidiariesSubsidiaries or any investment banker, financial advisor, attorney, accountant or other than the transactions contemplated representative retained by this Agreement (any of its Subsidiaries to take any such proposal action, and Bayonne shall notify RCFC orally (within 1 business day) and in writing (as promptly as practicable) of such inquiries and proposals which it or offer being hereinafter referred to as an "Acquisition Proposal") any of its subsidiaries or engage in any negotiations concerningsuch officer, director, employee, investment banker, financial advisor, attorney, accountant or provide any confidential information or data to, or have any discussions with, any person other representative may receive relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing such matters and each will take the necessary steps if such inquiry or proposal is in writing, Bayonne shall deliver to inform the individuals RCFC a copy of such inquiry or entities referred to above of the obligations undertaken in this Section 7.1; and (iii) that it will notify the other party immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, itproposal promptly; provided, however, that nothing contained in this Section 7.1 4.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers Bayonne from (xi) 19 furnishing information to to, or entering into discussions or negotiations withwith any, any person or entity that makes an unsolicited written, bona fide Acquisition Proposalproposal to acquire Bayonne pursuant to a merger, consolidation, share exchange, business combination, tender or exchange offer or other similar transaction, if, and only to the extent that, (A) the Board of Directors or of Bayonne receives a written opinion from its independent financial advisor that such proposal may be superior to the Merger from a financial point-of-view to Bayonne's stockholders, (B) the Board of Trust ManagersDirectors of Bayonne, as applicableafter consultation with independent legal counsel, determines in good faith that such action is required necessary for it the Board of Directors of Bayonne to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by stockholders under applicable law as advised by counsel, (such proposal that satisfies (A) and (B) being referred to herein as a "Superior Proposal") and (C) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party Bayonne (x) provides written reasonable notice to the other party to this Agreement RCFC to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and another partyand (Cy) subject to any confidentiality agreement with receives from such person or entity an executed confidentiality agreement in reasonably customary form, (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the termsii) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposala tender or exchange offer or (iii) failing to make or withdrawing or modifying its recommendation and entering into a Superior Proposal if there exists a Superior Proposal and the Board of Directors of Bayonne, after consultation with independent legal counsel, determines in good faith that such action is necessary for the Board of Directors of Bayonne to comply with its fiduciary duties to stockholders under applicable law. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term For purposes of this Agreement, no party "Acquisition Proposal" shall enter into mean any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal of the following (other than a confidentiality agreement in customary form))the transactions contemplated hereunder) involving Bayonne or any of its Subsidiaries: (i) any merger, consolidation, share exchange, business combination, or other similar transaction; (ii) any sale, lease, exchange, mortgage, pledge, transfer or other disposition of 15% or more of the assets of Bayonne or First Savings, taken as a whole, in a single transaction or series of transactions; (iii) affect any other obligation tender offer or exchange offer for 10% or more of the outstanding shares of capital stock of Bayonne or the filing of a registration statement under the Securities Act in connection therewith; or (iv) any party under this Agreementpublic announcement of a proposal, plan or intention to do any of the foregoing or any agreement to engage in any of the foregoing.
Appears in 3 contracts
Sources: Merger Agreement (Richmond County Financial Corp), Agreement and Plan of Merger (Richmond County Financial Corp), Merger Agreement (Richmond County Financial Corp)
Acquisition Proposals. Prior to the Effective Time, RELP and AIP each agree the Company agrees (ia) that neither of them it nor any of their its Subsidiaries shall, and each shall authorize or permit any of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managersdirectors, employees, agents, affiliates agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, not to, ) to initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholdersstockholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party the Company or any of its Subsidiaries, other than the transactions contemplated by this Agreement Subsidiaries (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person Person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (iib) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.16.7; and (iiic) that it will notify the other party FKWW and FKW Sub immediately if any such inquiries or proposals are received by, any such information is requested received from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 6.7 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers Company from (xi) 19 furnishing information to or entering into discussions or negotiations with, any person Person or entity that makes an unsolicited bona fide Acquisition Proposalproposal to acquire the Company pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of the assets, business combination or other similar transaction, if, and only to the extent that, that (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith faith, based as to legal matters on advice of outside legal counsel, that the failure to take such action is required for it would involve a substantial risk of breach of fiduciary duty to comply with its fiduciary duties to limited partners or shareholders, as applicable, the Company's shareholders imposed by law as advised by counselapplicable law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person Person or entity, such party the Company provides written notice to the other party to this Agreement FKWW and FKW Sub to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person Person or entity, and (C) subject to any confidentiality agreement with such person Person or entity (which such party determined the Company executed after determining in good faith was required faith, based as to be executed in order for legal matters on advice of outside counsel, that the failure to take such action would involve a substantial risk of breach of the Board of Directors or Board of Trust Managers, as applicable, Directors' fiduciary duty to comply with its fiduciary duties to limited partners or shareholders, as applicable, stockholders imposed by law as advised by counselapplicable law), such party the Company keeps the other party to this Agreement FKWW and FKW Sub informed of the status (but not the terms) of any such discussions or negotiations; and (yii) to the extent applicable, complying with Rule 14d-9 and 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 6.7 shall (ix) permit any party to terminate this Agreement (except as specifically provided in Article IX Section 8.1 hereof), (iiy) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person Person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iiiz) affect any other obligation of any party under this Agreement.
Appears in 3 contracts
Sources: Merger Agreement (Robertson M G), Merger Agreement (Regent University), Merger Agreement (Christian Broadcasting Network Inc)
Acquisition Proposals. Prior to Neither the Effective TimeCompany nor the Stockholders will, RELP and AIP each agree (i) that neither nor will any of them nor authorize or permit any of their Subsidiaries shallofficer, and each of them shall direct and use its best efforts to cause its respective officersdirector, General Partneremployee, limited partners, Trust Managers, employees, agents, affiliates and representatives (including, without limitation, consultant or contractor or any investment banker, attorney attorney, accountant or accountant retained by it other agent or Representative of the Company or any of its Subsidiaries), as applicable, not the Stockholders acting on any of their behalf to, initiate, solicit or encourage, directly or indirectly, (a) solicit, initiate or intentionally encourage the submission of any Acquisition Proposal or (b) participate in any discussions or negotiations regarding, or furnish to any Person any information in respect of, or take any other action to facilitate, any Acquisition Proposal or any inquiries or the making or implementation of any proposal that constitutes, or offer (including, without limitationmay reasonably be expected to lead to, any proposal or offer to its shareholders) with respect to a mergerAcquisition Proposal. Immediately after the execution and delivery of this Agreement, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion each of the assets or any equity securities (or any debt securities convertible into equity securities) ofCompany and the Stockholders will, such party or any of and will cause its Subsidiariesofficers, directors, employees, investment bankers, attorneys, accountants and other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data agents and Representatives to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) that it will immediately cease and cause to be terminated terminate any existing activities, discussions or negotiations with any parties conducted heretofore with in respect to of any possible Acquisition Proposal and will promptly inform the Buyer of the foregoing receipt of any subsequent Acquisition Proposal. Each of the Company and each the Stockholders will take the all necessary steps to promptly inform the individuals or entities referred to above in the first sentence of this Section 6.1 of the obligations undertaken in this Section 7.16.1. “Acquisition Proposal” means an inquiry, offer or proposal regarding any of the following (other than the Contemplated Transactions) involving the Company: (i) any merger, consolidation, share exchange, recapitalization, business combination or other similar transaction; and (ii) any sale of shares of capital stock or other equity interests or securities; (iii) that it will notify the any sale, lease, exchange, mortgage, pledge, Transfer or other party immediately if any such inquiries or proposals are received by, any such information is requested from, disposition of all or any such negotiations material portion of its assets in a single transaction or discussions are sought series of transactions; or (iv) any public announcement of a proposal, plan or intention to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors do any of the General Partner of RELP (the "Board of Directors") foregoing or the Board of Trust Managers from (x) 19 furnishing information any agreement to or entering into discussions or negotiations with, engage in any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreementforegoing.
Appears in 3 contracts
Sources: Stock Purchase Agreement (Probility Media Corp), Stock Purchase Agreement (Probility Media Corp), Stock Purchase Agreement (IZEA, Inc.)
Acquisition Proposals. Prior to the Effective Time(a) The Company agrees that, RELP and AIP each agree except as otherwise permitted in this Section 6.7, (i) that neither of them nor any of their it and its officers and directors will not, (ii) the Company Subsidiaries shalland the Company Subsidiaries’ officers and directors will not, and each of them shall direct (iii) its and use its best efforts to cause its respective officersthe Company Subsidiaries’ investment bankers, General Partnerfinancial advisors, limited partnersattorneys, Trust Managersaccountants, employees, consultants or other agents, affiliates and advisors or representatives (includingcollectively, without limitation“Representatives”) will not, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, not to, initiate, solicit or encourage, (A) directly or indirectly, initiate, solicit, cause, encourage or otherwise knowingly facilitate any inquiries or the making making, submission or implementation reaffirmation of any proposal or offer (includingwith respect to a tender offer or exchange offer, without limitationproxy solicitation, merger, reorganization, share exchange, recapitalization, liquidation, dissolution, consolidation, business combination or other similar transaction involving the Company and/or the Company Subsidiaries or any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation acquire in any manner an equity or similar transaction involvingvoting interest in the Company, or any purchase the assets, securities or other ownership interests of all or in the Company or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) ofCompany Subsidiary, such party or any of its Subsidiaries, in each case other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "“Acquisition Proposal"”), or (B) directly or indirectly, engage in any negotiations or discussions concerning, or provide access to its properties, books and records or any confidential information or data to, any Person relating to, or have any discussions withthat may reasonably be expected to lead to, any person relating to an Acquisition Proposal. The Company will promptly take the steps necessary to inform the Persons set forth in clauses (i), or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any (iii) of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above sentence of the obligations undertaken in this Section 7.1; 6.7, and (iii) the Company agrees that it will notify the other party immediately if be responsible for any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in breach of this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreement.6.7
Appears in 3 contracts
Sources: Merger Agreement (Westland Development Co Inc), Merger Agreement (Westland Development Co Inc), Agreement and Plan of Merger (Westland Development Co Inc)
Acquisition Proposals. Prior to the Effective Time, RELP and AIP each agree (a) The Company agrees that (i) that neither of them nor any of their it and its officers and directors shall not, (ii) it shall cause its Subsidiaries shalland its Subsidiaries’ officers and directors not to, and each of them (iii) it shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates and its Subsidiaries’ agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, not to, in each case (A) directly or indirectly, initiate, solicit or encourageknowingly, directly encourage or indirectly, facilitate (including by way of furnishing information) any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, the direct or indirect acquisition, including by way of a tender offer, exchange offer, merger, consolidation or similar transaction involvingother business combination, of (x) an equity interest representing a 15% or any purchase greater economic or voting interest in the Company, (y) the assets, securities or other ownership interests of all or any significant portion in the Company or its Subsidiaries representing 15% or more of the consolidated assets of the Company and its Subsidiaries or (z) any equity securities (other transaction the consummation of which would reasonably be expected to prevent or materially delay the Company from performing its obligations under this Agreement in any debt securities convertible into equity securities) of, such party material respect or any of its Subsidiariesmaterially delay consummating the transactions contemplated hereby, other than than, in the case of clauses (x), (y) and (z), the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "(“Acquisition Proposal"”), (B) directly or indirectly, engage in any discussions or negotiations concerning, provide access to its properties or furnish or provide access to its, books and records or any confidential information or data to, any Person relating to, an Acquisition Proposal or have (C) otherwise cooperate in any discussions way with, any person relating to an Acquisition Proposalor assist or participate in, facilitate or otherwise facilitate encourage, any effort or attempt by any other Person to make do or implement an seek to do any of the foregoing; provided, however, that if the Board of Directors of the Company, in good faith, and after consultation with outside counsel and financial advisors, determines that the failure to take such action would be reasonably likely to result in a breach of its fiduciary duties to the Company’s shareholders under applicable Law, then at any time prior to the acceptance for payment of Shares pursuant to the Offer, the Company and its representatives may, in response to a written Acquisition Proposal that the Board of Directors of the Company determines, in good faith, after consultation with outside counsel and financial advisors, constitutes, or would reasonably be expected to lead to, a Superior Proposal, and which Acquisition Proposal did not result from a breach of this Section 6.4(a), (1) provide access or furnish information with respect to the Company and its Subsidiaries to the Person making such Acquisition Proposal (and its representatives) pursuant to a customary confidentiality agreement that is no less restrictive than the Confidentiality Agreement (including in respect of standstill provisions) and (2) engage in discussions or negotiations with the Person making such Acquisition Proposal (and its representatives) regarding such Acquisition Proposal; (ii) provided further, however, that, subject to the right of the Company to withhold information where such disclosure would contravene any Law, the Company shall promptly provide to Parent any non-public information that it is provided to the Person making such Acquisition Proposal or its representatives which was not previously provided to Parent or Merger Sub. The Company and its Subsidiaries will, and will cause their respective agents and representatives to, immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties Persons conducted heretofore with respect to any Acquisition Proposal and will require that any such Person shall promptly return or destroy any confidential information of the foregoing and each will take the necessary steps Company or its Subsidiaries in its possession. The Company shall also promptly (within 24 hours and, in any event, prior to inform the individuals taking any action contemplated by clause (1) or entities referred to above (2) of this Section 6.4(a)) notify Parent of the obligations undertaken in this Section 7.1; and (iii) that it will notify the other party immediately if receipt of any such inquiries or proposals are received by, any such information is requested from, Acquisition Proposal or any such negotiations inquiry, proposal or discussions are sought offer that is reasonably likely to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect lead to an Acquisition Proposal during after the term date hereof, which notice shall include the identity of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Person making such Acquisition Proposal (or other than a confidentiality agreement in customary form))inquiry, proposal or (iii) affect any other obligation offer and the material terms and conditions thereof, and will keep Parent promptly and reasonably apprised of any party under this Agreementrelated material developments, discussions and negotiations related thereto.
Appears in 3 contracts
Sources: Merger Agreement (Abbott Laboratories), Merger Agreement (Kos Pharmaceuticals Inc), Merger Agreement (Jaharis Mary)
Acquisition Proposals. Prior to the Effective Time, RELP and AIP each agree (i) The Company agrees that neither of them it nor any of their Subsidiaries its subsidiaries nor any of its respective officers and directors or the officers and directors of any of its subsidiaries shall, and each of them it shall direct and use its all reasonable best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, employees and agents, affiliates and representatives (including, without limitation, including any investment banker, attorney or accountant retained by it or by any of its Subsidiaries)subsidiaries (collectively, as applicable, its “Representatives”) not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (includingAcquisition Proposal, without limitationor, any proposal or offer except to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase the extent that the board of all or any significant portion directors of the assets or any equity securities (or any debt securities convertible into equity securities) ofCompany determines, in good faith, after consultation with its outside financial and legal advisors, that such party or any action is required in order for the board of directors of the Company to comply with its Subsidiariesfiduciary duties, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person Person relating to an Acquisition Proposal, Proposal or otherwise facilitate any effort or attempt to implement or make or implement an Acquisition Proposal (and in any event, the Company shall not provide any confidential information or data to any Person in connection with an Acquisition Proposal unless such person shall have executed a confidentiality agreement on terms at least as favorable as those contained in the Confidentiality Agreement). “Acquisition Proposal; (ii) that it will immediately cease and cause to be terminated ” means any existing activities, discussions proposal or negotiations with any parties conducted heretofore offer with respect to the following involving the Company or any of its Significant Subsidiaries: (1) any merger, consolidation, share exchange, business combination or other similar transaction; (2) any sale, lease, exchange, pledge, transfer or other disposition of 30% or more of its consolidated assets or liabilities in a single transaction or series of transactions; (3) any tender offer or exchange offer for 30% or more of the outstanding shares of its capital stock; or (4) any public announcement of a proposal, plan or intention to do any of the foregoing and each will take the necessary steps or any agreement to inform the individuals or entities referred to above engage in any of the obligations undertaken foregoing, other than the Merger provided for in this Section 7.1; and (iii) that it will notify the other party immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained Plan. Notwithstanding anything in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only Plan to the extent thatcontrary, the Company shall (i) promptly advise PNC, orally and in writing, of (A) the Board receipt by it (or any of Directors the other persons referred to above) of any Acquisition Proposal, or Board of Trust Managers, as applicable, determines in good faith that such action is required for it any inquiry which could reasonably be expected to comply with its fiduciary duties lead to limited partners or shareholders, as applicable, imposed by law as advised by counselan Acquisition Proposal, (B) prior to furnishing the material terms and conditions of such information to, proposal or entering into discussions inquiry (whether written or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entityoral), and (C) subject to the identity of the person making any confidentiality agreement with such person proposal or entity inquiry and (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps ii) keep the other party to this Agreement hereto fully informed of the status (but not the terms) and details of any such discussions proposal or negotiations; inquiry and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement developments with respect thereto. The Company shall use its reasonable best efforts to an Acquisition Proposal during enforce any existing confidentiality or standstill agreements in accordance with the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreementterms thereof.
Appears in 2 contracts
Sources: Merger Agreement (Riggs National Corp), Merger Agreement (PNC Financial Services Group Inc)
Acquisition Proposals. Prior to 6.10.1. From and after the Effective Timedate hereof until the termination of this Agreement, RELP and AIP each agree (i) that neither of them Boardwalk Bancorp, nor any of their Subsidiaries Boardwalk Bancorp Subsidiary, shall, and each of them shall Boardwalk Bancorp will direct and use its best efforts to cause its their respective officers, General Partner, limited partners, Trust Managersdirectors, employees, agentsrepresentatives, agents or affiliates and representatives (including, without limitation, any investment banker, attorney or accountant retained by it Boardwalk Bancorp or any of its Subsidiaries), as applicable, not to, initiate, solicit or encourage, directly or indirectly, (i) initiate, solicit or knowingly encourage (including by way of furnishing non-public information or assistance) any inquiries or the making or implementation of any proposal that constitutes, or offer (including, without limitationmay reasonably be expected to lead to, any proposal Acquisition Proposal (as defined below) or offer (ii) enter into or maintain or continue discussions or negotiate with any person or entity in furtherance of such inquiries or to its shareholders) with respect obtain an Acquisition Proposal or agree to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involvingendorse any Acquisition Proposal, or authorize or permit any purchase of all its officers, directors, or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party employees or any of its SubsidiariesSubsidiaries or any investment banker, financial advisor, attorney, accountant or other than the transactions contemplated representative retained by this Agreement (any of its Subsidiaries to take any such proposal or offer being hereinafter referred to action, and Boardwalk Bancorp shall notify Cape Savings orally (within one business day) and in writing (as an "Acquisition Proposal"promptly as practicable) or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person of all of the relevant details relating to an Acquisition Proposalall inquiries and proposals which it or any of its Subsidiaries or any such officer, director, employee, investment banker, financial advisor, attorney, accountant or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect other representative may receive relating to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and (iii) that it will notify the other party immediately if any such inquiries or proposals are received bymatters, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 6.10 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers Boardwalk Bancorp from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreement.,
Appears in 2 contracts
Sources: Merger Agreement (Boardwalk Bancorp Inc), Merger Agreement (Cape Bancorp, Inc.)
Acquisition Proposals. Prior to Until the Effective Time, RELP and AIP each agree earlier of (i) that neither the consummation of them nor the Merger and (ii) 180 days after the termination of the Transaction Agreement in case of termination pursuant to Section 8.01(c)(ii) or 8.01(d)(ii) thereof, or on the date of termination in the case of termination for any of their Subsidiaries shallother reason, and each of them the Shareholder shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, not to, initiate, solicit or encouragenot, directly or indirectly, through any inquiries representative, agent or otherwise, solicit, initiate or encourage the making or implementation submission of any proposal or offer (including, without limitation, from any proposal person or offer entity relating to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation any acquisition or similar transaction involving, or any purchase of all or (other than in the ordinary course of business) any significant portion of the assets of, or any equity securities (or any debt securities convertible into equity securities) ofinterest in, such party the Company or any of its Subsidiariessubsidiaries or any recapitalization, other than business combination or similar transaction with the transactions contemplated by this Agreement Company or any of its subsidiaries (any such proposal or offer communication with respect to the foregoing being hereinafter referred to as an "Acquisition Proposal") or engage participate in any negotiations concerningregarding, or provide furnish to any confidential other person or entity any information or data with respect to, or have otherwise cooperate in any discussions way with, any person relating to an Acquisition Proposalor assist or participate in, facilitate or otherwise facilitate encourage, any effort or attempt by any other person to make do or implement an Acquisition Proposal; (ii) that it seek any of the foregoing. The Shareholder will immediately cease and cause to be terminated any all existing activities, 6 6 discussions or and negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. From and after the execution of this Agreement, the Shareholder shall immediately advise Purchasers in writing of the foregoing and each will take receipt, directly or indirectly, of any inquiries, discussions, negotiations, or proposals relating to an Acquisition Proposal that the necessary steps to inform the individuals or entities referred to above Shareholder receives in his capacity as a shareholder of the obligations undertaken in this Section 7.1; Company (including the specific terms thereof and (iii) that it will notify the identity of the other party immediately if or parties involved) and furnish to Purchasers within 48 hours of such receipt an accurate description of all material terms (including any changes or adjustments to such inquiries or proposals are received by, any such information is requested from, or any such terms as a result of negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the termsotherwise) of any such discussions or negotiations; and (y) written proposal in addition to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard any information provided to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any third party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreementrelating thereto.
Appears in 2 contracts
Sources: Shareholder Support Agreement (Blum Richard C & Associates L P), Shareholder Agreement (Kinetic Concepts Inc /Tx/)
Acquisition Proposals. Prior to the Effective Time, RELP and AIP each agree (i) The Company agrees that neither of them it nor any of their its Subsidiaries shall, and each shall authorize or permit any of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managersdirectors, employees, agents, affiliates and agents or representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, not to, initiate, solicit or encourage, ) to directly or indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal proposal, tender offer or exchange offer to its shareholdersstockholders of the Company) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets assets, deposits or any equity securities (or any debt securities convertible into equity securities) of, such party the Company or any of its Subsidiaries, other than the transactions contemplated by this Agreement Subsidiaries (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or or, except to the extent legally required for the discharge by the Company's board of directors of its fiduciary duties as advised by such board's counsel with respect to an unsolicited offer from a third party, engage in any negotiations concerning, concerning or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Acquisiton Proposal; (ii) that it . The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties (other than the Acquiror) conducted heretofore with respect to any of the foregoing and each foregoing. The Company will take the necessary steps to inform promptly the appropriate individuals or entities referred to above in the first sentence hereof of the obligations undertaken in this Section 7.1; and (iii) 4.
1. The Company agrees that it will notify the other party Acquiror immediately if any such inquiries inquiries, proposals or proposals offers are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit with the Board Company or any of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, ifits Subsidiaries, and only to the extent that, (A) Company shall promptly thereafter provide the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) details of any such discussions or negotiations; and (y) communication to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition ProposalAcquiror in writing. Nothing in this Section 7.1 The Company also agrees that it promptly shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any request each other person that provides for, or in any way facilitates, an Acquisition Proposal (other than the Acquiror) that has heretofore executed a confidentiality agreement in customary form)), connection with its consideration of acquiring the Company or (iii) affect any other obligation of its Subsidiaries to return all confidential information heretofore furnished to such person by or on behalf of the Company or any party under this Agreementof its Subsidiaries and enforce any such confidentiality agreements.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (First Nationwide Holdings Inc), Agreement and Plan of Merger (First Nationwide Parent Holdings Inc)
Acquisition Proposals. Prior to the Effective Time, RELP and AIP each agree (i) The Company agrees that neither of them it nor any of their Subsidiaries its subsidiaries nor any of the respective officers and directors of the Company or its subsidiaries shall, and each of them the Company shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, subsidiaries) not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholdersshareholders of the Company) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party the Company or any of its Subsidiaries, other than the transactions contemplated by this Agreement subsidiaries (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or or, if the Company's Board of Directors determines, upon receipt of a written opinion of its outside counsel, that it is required to take the following action in order to fulfill their fiduciary duties to the Company's shareholders under the State Corporation Law, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) that it . The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each enforce any confidentiality agreements to which it or any of its subsidiaries is a party. The Company will take the necessary steps to inform the appropriate individuals or entities referred to above in the first sentence hereof of the obligations undertaken in this Section 7.1; and (iii) that it 5.1. The Company will notify (describing the other party relevant facts) Parent immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this AgreementCompany.
Appears in 2 contracts
Sources: Merger Agreement (Citizens Banking Corp), Merger Agreement (Citizens Banking Corp)
Acquisition Proposals. Prior to the Effective Time, RELP and AIP each agree (i) SCB agrees that neither of them it nor SC Bank nor any of their Subsidiaries respective officers or directors shall, and each of them SCB shall direct and use its reasonable best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, SC Bank) not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholdersshareholders of SCB) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involvingtransaction, other than pursuant to this Agreement, or involving any purchase of all or any significant portion of the assets or any equity securities (of SCB or any debt securities convertible into equity securities) of, such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement SC Bank (any such proposal or offer being hereinafter referred to as an "Acquisition ProposalACQUISITION PROPOSAL") or or, except to the extent legally required for the discharge by the board of directors of its fiduciary duties as advised by such board's outside legal counsel, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) that it . SCB will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each shall make all reasonable efforts to enforce any confidentiality agreements to which it or SC Bank is a party. SCB will take the necessary steps to inform the appropriate individuals or entities referred to above in the first sentence hereof of the obligations undertaken in this Section 7.1; and (iii) that it 6.6. SCB will notify the other party Acquiror immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") with SCB or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this AgreementSC Bank.
Appears in 2 contracts
Sources: Merger Agreement (Monarch Bancorp), Merger Agreement (Sc Bancorp)
Acquisition Proposals. Prior to the Effective Time, RELP and AIP each agree (i) The Company agrees that neither of them nor any of their Subsidiaries shallit shall not, and each of them shall direct and use its best efforts to cause its respective Subsidiaries and its and its Subsidiaries' officers, General Partner, limited partners, Trust Managers, employeesdirectors, agents, advisors and affiliates and representatives (includingnot to, without limitationsolicit or 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 investment bankerperson relating to, attorney any tender or accountant retained by it exchange offer, proposal for a merger, consolidation or other business combination involving the Company or any of its Subsidiaries), as applicable, not to, initiate, solicit Subsidiaries or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to acquire in any manner a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involvingsubstantial equity interest in, or any purchase of all or any significant a substantial portion of the assets or any equity securities (or any debt securities convertible into equity securities) deposits of, such party the Company or any of its Subsidiaries, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as of the foregoing, an "Acquisition Proposal") or ); provided, that, if the Company is not otherwise in violation of this Section 6.06, the Company Board may provide information to, and may engage in any such negotiations concerning, or provide any confidential information or data to, or have any discussions with, any a person, directly or through representatives, if (a) the Company Board, after having consulted with and considered the written advice of counsel, has determined in good faith that the provision of such information or the engaging in such negotiations or discussion is required in order to discharge properly the directors' fiduciary duties in accordance with Delaware law and (b) the Company has received from such person relating a confidentiality agreement in substantially customary form. The Company also agrees immediately to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations conducted prior to the date of this Agreement with any parties conducted heretofore other than the Acquiror or the Bank, with respect to any of the foregoing foregoing. The Company shall promptly (within 24 hours) advise the Acquiror following the receipt by it of any Acquisition Proposal and each will take the necessary steps to inform substance thereof (including the individuals or entities referred to above identity of the obligations undertaken in this Section 7.1; and (iii) that it will notify the other party immediately if any person making such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if), and only to advise the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) Acquiror of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement developments with respect to an such Acquisition Proposal during immediately upon the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreementoccurrence thereof.
Appears in 2 contracts
Sources: Agreement and Plan of Combination (North American Mortgage Co), Agreement and Plan of Combination (Dime Bancorp Inc)
Acquisition Proposals. Prior to (a) None of the Effective Time, RELP and AIP each agree (i) that neither of them nor any of their Subsidiaries shall, and each of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates and representatives (including, without limitation, any investment banker, attorney or accountant retained by it Company or any of its SubsidiariesSubsidiaries shall (whether directly or indirectly through Affiliates, directors, officers, representatives or other intermediaries), as applicable, not to, initiate, solicit or encourage, nor shall (directly or indirectly, any inquiries ) the Company authorize or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party or permit any of its Subsidiariesor their officers, directors, representatives or other intermediaries or Subsidiaries to, (i) solicit, initiate or take any action to facilitate or encourage the submission of inquiries, proposals or offers from any Person (other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"Parent) or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an any Acquisition Proposal, or otherwise facilitate agree to or endorse any effort or attempt to make or implement an Acquisition Proposal; (ii) that enter into any agreement to (x) facilitate or consummate, any Acquisition Proposal, (y) approve or endorse any Acquisition Proposal or (z) in connection with any Acquisition Proposal, require it will to abandon, terminate or fail to consummate the Merger; (iii) enter into or participate in any discussions or negotiations in connection with any Acquisition Proposal or inquiry with respect to any Acquisition Proposal, or furnish to any Person any information with respect to its business, properties or assets in connection with any Acquisition Proposal or inquiry with respect to any Acquisition Proposal; or (iv) agree to resolve or take any of the actions prohibited by clause (i), (ii) or (iii) of 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 conducted heretofore with respect to any of the foregoing and each will take shall demand the necessary steps to inform the individuals return or entities referred to above of the obligations undertaken in this Section 7.1; and (iii) that it will notify the other party immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) destruction of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically information previously provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during such activities, discussion, or negotiations. For purposes of this Section 7.5, the term “Person” means any person, corporation, entity or “group,” as defined in Section 13(d) of this Agreement (it being agreed that during the term of this AgreementExchange Act, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), Parent or (iii) affect any other obligation Subsidiaries of any party under this AgreementParent.
Appears in 2 contracts
Sources: Merger Agreement (Broadwing Corp), Merger Agreement (Broadwing Corp)
Acquisition Proposals. Prior to the Effective Time, RELP Sobieski and AIP each Seller agree (i) that neither of them nor any of their Subsidiaries shallthey shall not, and each of them they shall direct and use its best efforts to cause its respective their officers, General Partner, limited partners, Trust Managers, employeesdirectors, agents, advisors and affiliates and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, not to, initiate, solicit or encourage, directly or indirectly, any encourage inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) proposals with respect to a mergerto, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to, any tender or exchange offer, proposal for a merger, consolidation, sale of assets and assumption of liabilities, or other business combination involving Sobieski or Seller or any proposal or offer to acquire in any manner a substantial equity interest in, or a substantial portion of the assets or deposits of, Sobieski or Seller other than the transactions contemplated by this Agreement (any of the foregoing, an "Acquisition Proposal"); provided however, that if Sobieski is not otherwise in violation of this Section 7.07, Sobieski's Board of Directors may provide information to, and may engage in such negotiations or discussions with, a person with respect to an Acquisition Proposal, directly or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) that it will immediately cease and cause to be terminated any existing activitiesthrough representatives, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and (iii) that it will notify the other party immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Sobieski's Board of Directors") or , after consulting with and considering the Board advice of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, its financial advisor and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicableits outside counsel, determines in good faith that its failure to provide information or to engage in any such action is required for it negotiations or discussions would constitute a failure to comply with its discharge properly the fiduciary duties to limited partners or shareholders, as applicable, imposed of such directors in accordance with Delaware law. Sobieski shall promptly (within 24 hours) advise Buyer following the receipt by law as advised by counsel, it of any Acquisition Proposal and the substance thereof (B) prior to furnishing including the identity of the person making such information to, or entering into discussions or negotiations with, Acquisition Proposal and a copy of such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entityAcquisition Proposal), and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for advise the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) Buyer of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement developments with respect to an such Acquisition Proposal during immediately upon the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreementoccurrence thereof.
Appears in 2 contracts
Sources: Purchase and Assumption Agreement (Sobieski Bancorp Inc), Purchase and Assumption Agreement (MFB Corp)
Acquisition Proposals. Prior Without limitation on any of such party's other obligations under this Agreement (including under Article IV hereof), and except with respect to the Effective Timea transaction specifically permitted under Section 4.1(e) or (f), RELP each of ▇▇▇▇-▇▇▇▇▇ and AIP each agree (i) Oryx agrees that neither of them it nor any of its Subsidiaries nor any of its or their Subsidiaries shall, and each of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agentsdirectors, affiliates and agents or representatives (including, without limitation, including any investment banker, attorney or accountant retained by it or any of its Subsidiaries)) will, as applicable, not todirectly or indirectly, initiate, solicit or encourage, directly or indirectly, knowingly facilitate (including by way of furnishing information) any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisitionreorganization, tender offershare exchange, exchange offerconsolidation, consolidation business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party involving it or any of its Subsidiaries, other than or any purchase or sale of the transactions contemplated by this Agreement assets (including stock of Subsidiaries) of it or any of its Subsidiaries, taken as a whole, having an aggregate value equal to 10% or more of the consolidated asset value of such party, or any purchase or sale of, or tender or exchange offer for, 10% or more of the equity securities of such party (any such proposal or offer (other than a proposal or offer made by the other party or an affiliate thereof) being hereinafter referred to as an "Acquisition Proposal"). Each of ▇▇▇▇-▇▇▇▇▇ and Oryx further agrees that neither it nor any of its Subsidiaries nor any of their officers, employees, directors, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) will, directly or engage in indirectly, have any negotiations concerning, discussion with or provide any confidential information or data to, or have to any discussions with, any person Person relating to an Acquisition Proposal, or otherwise engage in any negotiations concerning an Acquisition Proposal, or knowingly facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; (ii) that it will immediately cease . Notwithstanding anything herein to the contrary, each of ▇▇▇▇-▇▇▇▇▇ and cause to be terminated any existing activities, discussions Oryx or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and (iii) that it will notify the other party immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the its respective Board of Directors of the General Partner of RELP (the "Board of Directors"shall be permitted, subject to Sections 7.1(f) or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, 7.2: (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying to comply with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (B) to the extent required by its fiduciary duties, to approve or recommend or resolve to approve or recommend an Acquisition Proposal or otherwise make an Adverse Change in the ▇▇▇▇-▇▇▇▇▇ Recommendation or an Adverse Change in the Oryx Recommendation, as the case may be; and (C) engage in any discussions or negotiations with, or provide any 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 (i) the approval of its stockholders referred to in Section 3.1(g) or 3.2(g), as the case may be, shall not have been obtained, (ii) its Board of Directors determines that such Acquisition Proposal is a Superior Proposal (as defined in Section 8.11), and (iii) 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 containing confidentiality terms at least as favorable to it as those contained in the relevant Confidentiality Agreement. Each of ▇▇▇▇-▇▇▇▇▇ and Oryx agrees that it will notify the other party promptly of any inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, it or any of its representatives with respect to, or which could reasonably be expected to lead to, an Acquisition Proposal indicating, in connection with such notice, the name of such Person and the material terms, conditions and other aspects of any such inquiries, proposals, offers, requests, discussions or negotiations, including promptly forwarding copies of any written Acquisition Proposals, and promptly keep the other party informed of the status and terms of any such proposals or offers and the status and terms of any such discussions or negotiations. Each of ▇▇▇▇-▇▇▇▇▇ and Oryx agrees that it will, and will cause its officers, employees, directors, agents and representatives to, immediately cease any activities, discussions or negotiations existing as of the date of this Agreement with any parties conducted heretofore with respect to any Acquisition Proposal. Nothing in this Section 7.1 5.4 shall (i) permit any party ▇▇▇▇-▇▇▇▇▇ or Oryx to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party ▇▇▇▇-▇▇▇▇▇ or Oryx under this Agreement. No action taken in respect of a Superior Proposal which is specifically permitted pursuant to this Section 5.4, including without limitation any change in recommendation of the Board of Directors of either ▇▇▇▇-▇▇▇▇▇ or Oryx and the public announcement thereof, will constitute a breach of any other provision hereof.
Appears in 2 contracts
Sources: Merger Agreement (Oryx Energy Co), Merger Agreement (Oryx Energy Co)
Acquisition Proposals. Prior to the Effective Time, RELP and AIP each agree (i) The Company agrees that neither of them it nor any of its Subsidiaries nor any of its or their Subsidiaries respective officers and directors shall, and each of them that the Company shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, and its Subsidiaries' employees, agents, affiliates agents and representatives (including, without limitation, including any investment banker, attorney or accountant retained by it or any of its Subsidiaries)) (such officers, directors, employees, agents and representatives sometimes collectively referred to herein as applicable, "REPRESENTATIVES") not to, initiate, solicit or encourage, directly or indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries or the making or implementation of any proposal or offer (including, without limitation, or entering into any proposal or offer to its shareholders) agreement with respect to a merger, acquisitionreorganization, tender offer, exchange offershare exchange, consolidation or similar transaction involving, or any purchase of all 20% or any significant portion more of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party the Company or any of its Subsidiaries, other than the transactions contemplated by this Agreement Subsidiaries (any such proposal or offer being hereinafter referred to as an "Acquisition ProposalACQUISITION PROPOSAL"). The Company further agrees that neither it nor any of its Subsidiaries nor any of their respective officers and directors shall, and that the Company shall direct and cause its and its Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person Person relating to to, an Acquisition Proposal, whether made before or after the date of this Agreement, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; PROVIDED, HOWEVER, that nothing contained in this Agreement shall prevent the Company or its Board of Directors from (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (B) providing information in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Board of Directors receives from the Person so requesting such information an executed confidentiality agreement ("THIRD PARTY CONFIDENTIALITY AGREEMENT") on terms no less favorable to the Company than its agreement with Parent; (C) engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal; or (D) recommending an unsolicited bona fide written Acquisition Proposal to the stockholders of the Company, if and only to the extent that, prior to taking any such action (i) in each such case referred to in clause (B), (C) or (D) above, the Board of Directors of the Company determines in good faith based on the advice of its outside legal counsel experienced in such matters that such action is necessary in order for its directors to comply with their respective fiduciary duties under applicable Law and (ii) in each case referred to in clause (C) or (D) above, the Board of Directors of the Company determines in good faith that it such Acquisition Proposal, if accepted, is reasonably likely to be consummated, 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 superior to the transaction contemplated by this Agreement, taking into account, among other things, the long-term prospects and interests of the Company and its stockholders (any such superior Acquisition Proposal being referred to in this Agreement as a "SUPERIOR PROPOSAL"). The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each foregoing. The Company agrees that it will take the necessary steps to promptly inform the individuals or entities referred to above its Representatives of the obligations undertaken in this Section 7.1; and (iii) that it 6.2. The Company will notify the other party Parent immediately (but, in any event, no less than 24 hours thereafter) if any such inquiries Acquisition Proposal or proposals are inquiry related thereto is received by, any such information is requested from, or any such discussions or negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board Company or any of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard Representatives relating to an Acquisition Proposal, indicating the name of such Person and the material terms and conditions of any Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed The Company also will promptly request each Person that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than has heretofore executed a confidentiality agreement in customary form)), connection with its consideration of an Acquisition Proposal to return all confidential information heretofore furnished to such Person by or (iii) affect on behalf of it or any other obligation of any party under this Agreementits Subsidiaries.
Appears in 2 contracts
Sources: Agreement and Plan of Reorganization and Merger (Medical Resources Management Inc), Agreement and Plan of Reorganization and Merger (Emergent Group Inc/Ny)
Acquisition Proposals. Prior The Company agrees that after the date hereof and prior to the Effective Timeearlier of the termination of this Agreement in accordance with the terms herein and the Second Closing Date, RELP and AIP each agree (i) that neither of them it nor any of their its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and each of them that it shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, and its Subsidiaries' employees, agents, affiliates agents and representatives (including, without limitation, including any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, ) not to, initiate, solicit or encourage, directly or indirectly, initiate or solicit, encourage or otherwise knowingly facilitate any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisitionreorganization, tender offer, exchange offershare exchange, consolidation or similar transaction involving, or any purchase of all or any significant portion 15% or more of the assets or any outstanding equity securities (or any debt securities convertible into equity securities) of, such party it or any of its Subsidiaries, other than the transactions contemplated by this Agreement Subsidiaries (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall direct and use its best efforts to cause its and its Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person other than the Purchaser relating to an Acquisition Proposal or any person that the Company believes may be considering an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and (iii) that it will notify the other party immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 Agreement shall prohibit prevent the Company or its Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (xa) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreement.14e-2
Appears in 2 contracts
Sources: Stock and Warrant Purchase Agreement (Princeton Video Image Inc), Stock and Warrant Purchase Agreement (Princeton Video Image Inc)
Acquisition Proposals. Prior to the Effective TimeUnless and until this Agreement shall have been terminated in accordance with its terms, RELP Seller agrees and AIP each agree covenants (ia) that neither of them it nor any of their Subsidiaries its General Partners shall, and each of them shall direct and use its best commercially reasonable and good faith efforts to cause its respective officers, General Partner, limited partners, Trust Managersdirectors, employees, agents, affiliates agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, them) not to, directly or indirectly, initiate, solicit or encourage, directly or indirectly, encourage any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholderspartners) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets Properties or any equity securities (or any debt securities convertible into equity securities) partnership interests of, such party or any of its SubsidiariesSeller, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or to have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (iib) that it Seller will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.18.2; and (iiic) that it Seller will notify the other party Purchaser immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 8.2 shall prohibit the Board General Partners of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers Seller, from (xi) 19 furnishing information to to, or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board General Partners, after consultation with and based upon the advice of Directors Katten Muchin & Zavis, or Board of Trust Managers, as applicableanothe▇ ▇▇▇▇▇▇▇▇▇▇ recognized law firm selected by Seller, determines in good faith that such action is required for it the General Partners to comply with its their fiduciary duties to limited their partners or shareholders, as applicable, imposed by law as advised by counselunder applicable law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party Seller provides written notice to the other party to this Agreement Purchaser to the effect that it is furnishing information to, or entering into discussions discussion or negotiations with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party Seller keeps the other party to this Agreement Purchaser informed of the status (but not the terms) of any such discussions or negotiations; and (yii) to the extent applicable, complying with Rule 14e-2 and Rule 14a-9 and any other applicable provisions or rules promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), with regard to an Acquisition Proposal. Nothing Notwithstanding anything to the contrary set forth herein, nothing in this Section 7.1 8.2 shall (i) permit any party Purchaser or Seller to terminate this Agreement (except as specifically provided in Article IX Section 8.4 hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreement.
Appears in 2 contracts
Sources: Sale Agreement (Balcor Colonial Storage Income Fund 86), Sale Agreement (Balcor Colonial Storage Income Fund 86)
Acquisition Proposals. Prior to the Effective Time, RELP and AIP each agree (ia) that neither of them nor any of their Subsidiaries No Target Entity shall, and each of them Target Entity shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, Representatives not to, directly or indirectly (i) solicit, initiate, solicit or encourage, directly knowingly facilitate (including by way of providing information) or indirectlyinduce any inquiry, proposal or offer with respect to, or the making or completion of, any Acquisition Proposal, or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal, (ii) enter into, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any Person or “Group” (as such term is defined in Section 13(d) under the Exchange Act) any confidential or nonpublic information with respect to or in connection with, an Acquisition Proposal, (iii) take any other action to facilitate any inquiries or the making or implementation of any proposal that constitutes or offer (including, without limitation, any proposal or offer may reasonably be expected to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating lead to an Acquisition Proposal, (iv) approve, endorse or recommend, or propose to approve, endorse or recommend any Acquisition Proposal or any agreement related thereto (other than any confidentiality agreement required by Section 7.2(b)), (v) enter into any agreement contemplating or otherwise facilitate relating to any effort Acquisition Transaction (other than any confidentiality agreement required by Section 7.2(b)), or attempt (vi) propose or agree to make do any of the foregoing.
(b) Notwithstanding anything to the contrary in Section 7.2(a), if Target or implement 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 the Shareholders Meeting that the board of directors of Target has determined, in its good faith judgment (after consultation with Target’s financial advisors and outside legal counsel) to constitute or to be reasonably likely to result in a Superior Proposal, Target and its Representatives may take any action described in Section 7.2(a)(ii) above to the extent that the board of directors of Target has determined, in its good faith judgment (after consultation with Target’s outside legal counsel), that the failure to take such action would cause it to violate its fiduciary duties under applicable Law; provided, that, prior to providing (or causing to be provided) any confidential or nonpublic information or data permitted to be provided pursuant to this sentence, Target has obtained from such Person or “Group” an executed confidentiality agreement containing terms no less favorable to Target than, the terms of the Target Confidentiality Agreement.
(c) As promptly as practicable (but in no event more than 24 hours) following receipt of any Acquisition Proposal or any request for nonpublic information or inquiry that would reasonably be expected to lead to any Acquisition Proposal, Target shall advise Buyer in writing of the receipt of any Acquisition Proposal, request or inquiry and the terms and conditions of such Acquisition Proposal, request or inquiry, shall promptly provide to Buyer a written summary of the material terms of such Acquisition Proposal, request or inquiry (including the identity of the Person or “Group” (as such term is defined in Section 13(d) under the Exchange Act) making the Acquisition Proposal and shall keep Buyer promptly apprised of any related developments, discussions and negotiations (including providing Parent with a copy of all material documentation and correspondence relating thereto) on a current basis. Target agrees that it shall simultaneously provide to Buyer any confidential or nonpublic information concerning Target that may be provided (pursuant to Section 7.2(b)) to any other Person or “Group” in connection with any Acquisition Proposal which has not previously been provided to Buyer.
(d) Notwithstanding anything herein to the contrary, at any time prior to the Shareholders’ Meeting, if Target has received a Superior Proposal (after giving effect to the terms of any revised offer by Buyer pursuant to this Section 7.2(d)), the board of directors of Target may, in connection with such Superior Proposal, make a Change in the Target Recommendation, if and only to the extent that the board of directors of Target has determined in good faith, after consultation with outside counsel, that the failure to take such action would cause it to violate its fiduciary duties under applicable Law; provided, that the board of directors of Target may not effect a Change in the Target Recommendation unless:
(i) Target shall have received an unsolicited bona fide written Acquisition Proposal and the board of directors of Target shall have concluded in good faith that such Acquisition Proposal is a Superior Proposal, after taking into account any amendment or modification to this Agreement agreed to by Buyer;
(ii) Target shall have provided prior written notice to Buyer at least three (3) calendar days in advance (the “Notice Period”) of taking such action, which notice shall advise Buyer that it will the board of directors of Target has received a Superior Proposal, specify the material terms and conditions of such Superior Proposal (including the identity of the Person or “Group” (as such term is defined in Section 13(d) under the Exchange Act) making the Superior Proposal);
(iii) during the Notice Period, Target shall, and shall cause its financial advisors and outside counsel to, negotiate with Buyer in good faith (to the extent Buyer desires to so 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) the board of directors of Target shall have concluded in good faith that, after considering the results of such negotiations and giving effect to any proposals, amendments or modifications offered or agreed to by Buyer, if any, that such Acquisition Proposal continues to constitute a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal and such revisions are material, Target shall deliver a new written notice to Buyer and shall comply with the requirements of this Section 7.2(d) with respect to such new written notice, except that the new Notice Period shall be two (2) calendar days. In the event the board of directors of Target does not make the determination referred to in clause (iv) of this paragraph and thereafter seeks to effect a Change in the Target Recommendation, the procedures referred to above shall apply anew and shall also apply to any subsequent Change in the Target Recommendation.
(e) Target and its Subsidiaries shall, and shall cause their respective Representatives to, (i) immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any parties Persons conducted heretofore with respect to any Acquisition Proposal; (ii) request the prompt return or destruction of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken all confidential information previously furnished in this Section 7.1connection therewith; and (iii) that not terminate, waive, amend, release or modify any provision of any confidentiality or standstill agreement relating to any Acquisition Proposal to which it will notify or any Target Entity or Representative is a party, and enforce the other party immediately if provisions of any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing agreement.
(f) Nothing contained in this Section 7.1 Agreement shall prohibit the Board prevent Target or its board of Directors of the General Partner of RELP (the "Board of Directors"directors from issuing as “stop, look and listen” communication pursuant to Rule 14d-9(f) or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act or complying with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal during or from making any disclosure to Target shareholders if Target’s board of directors (after consultation with outside counsel) concludes that its failure to do so would cause it to violate its fiduciary duties under applicable Law; provided, that such Rules will in no way eliminate or modify the term of this Agreement (it being agreed effect that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party action pursuant to such Rules would otherwise have under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Sterling Bancshares Inc), Merger Agreement (Comerica Inc /New/)
Acquisition Proposals. Prior to the Effective Time4.6.1 Consumers shall not, RELP and AIP each agree (i) that neither of them nor shall it authorize or permit any of their Subsidiaries shallofficer, and each of them shall direct and use its best efforts to cause its respective officersdirector or employee of, General Partner, limited partners, Trust Managers, employees, agents, affiliates and representatives (including, without limitation, or any investment banker, attorney attorney, or accountant retained by it other advisor or representative of, Consumers or any of its Subsidiaries), as applicable, not subsidiaries to, initiate, solicit or encourage, directly or indirectly, (i) solicit, initiate or encourage the submission of any Acquisition Proposal (as defined below) or (ii) participate in any discussions or negotiations regarding, or furnish to any person any information with respect to, or take any other action to facilitate any inquiries or the making or implementation of any proposal that constitutes, or offer (including, without limitationmay reasonably be expected to lead to, any Acquisition Proposal; provided, however, that if, at any time prior to receipt of the approval of the Merger by the holders of the Consumers Common Shares (the "Consumers Applicable Period"), the Board of Directors of Consumers determines in good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its fiduciary duties to Consumers' shareholders under applicable law, Consumers may, in response to a Superior Proposal (as defined in Section 4.7.1) which was not solicited by it or which did not otherwise result from a breach of this Section 4.6, and subject to providing prior written notice of its decision to take such action to PSC (the "Consumers Notice") and compliance with Section 4.6.2
(a) furnish information with respect to Consumers and its subsidiaries to any person making a Superior Proposal pursuant to a customary confidentiality agreement (as determined by Consumers after consultation with its outside counsel) and (b) participate in discussions or negotiations regarding such Superior Proposal. For purposes of this Agreement, "Acquisition Proposal" means any inquiry, proposal or offer from any person relating to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation any direct or similar transaction involving, indirect acquisition or any purchase of all a business (a "Material Business") that constitutes 15% or any significant portion more of the net revenues, net income or the assets or any equity securities (or any debt securities convertible into including equity securities) ofof Consumers and its subsidiaries, such party taken as a whole, or 15% or more of any class of voting securities of Consumers or any of its Subsidiariessubsidiaries owning, operating or controlling a Material Business, any tender offer or exchange offer that if consummated would result in any person beneficially owning 15% or more of any class of voting securities of Consumers or any such subsidiary, or any merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving Consumers or any such subsidiary, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and (iii) that it will notify the other party immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Philadelphia Suburban Corp), Agreement and Plan of Merger (Consumers Water Co)
Acquisition Proposals. Prior Unless and until this Agreement has been terminated pursuant to the Effective TimeSection 7.1 or Section 7.2, RELP and AIP each agree Dynamotion will not directly, or indirectly through any officer, director, agent, employee, or representative, (ia) that neither of them nor any of their Subsidiaries shall, and each of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, not toencourage, initiate, solicit or encouragesolicit, directly on or indirectlyafter the date hereof, any inquiries or the making submission of any proposals or implementation offers from any person relating to any merger, consolidation, sale of all or substantially all of its assets, or similar business transaction involving Dynamotion (each, an "Acquisition Transaction"); (b) participate in any negotiations regarding, furnish to any other person any information with respect to, or otherwise assist or participate in, any attempt by any third party to propose or offer any Acquisition Transaction; (c) enter into or execute any agreement relating to an Acquisition Transaction; or (d) make or authorize any public statement, recommendation, or solicitation in support of any Acquisition Transaction or any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition ProposalTransaction, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore in each case other than with respect to any of the foregoing and each will take Merger. Notwithstanding the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and (iii) that it will notify the other party immediately if any such inquiries or proposals are received byforegoing, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained herein will prohibit Dynamotion from taking the actions described above in this Section 7.1 shall prohibit connection with an unsolicited third-party proposal or offer of an Acquisition Transaction if and to the extent that (i) the Board of Directors of Dynamotion determines in good faith, upon advice of legal counsel, that such action is required for the General Partner directors of RELP Dynamotion to fulfill their fiduciary duties and obligations under New York law and (the "Board of Directors"ii) or the Board of Trust Managers from (x) 19 before furnishing such information to or entering into discussions or negotiations withwith such third party, any person Dynamotion provides prompt written notice to ESI of such proposal or entity that makes an unsolicited bona fide Acquisition Proposaloffer and, if, and only to the extent that, (A) not inconsistent with the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholdersof Dynamotion's officers and directors, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreement.provides
Appears in 2 contracts
Sources: Agreement of Reorganization and Merger (Dynamotion Investment LLC), Agreement of Reorganization and Merger (Dynamotion/Ati Corp)
Acquisition Proposals. Prior to the Effective Time, RELP and AIP each agree R. ▇▇▇▇▇▇ ▇▇▇eby agrees (ia) that neither of them it nor any of their Subsidiaries the C.R. ▇▇▇▇▇▇ ▇▇▇sidiaries shall, and each of them it shall direct and use its best efforts to cause its respective and the C.R. ▇▇▇▇▇▇ ▇▇▇sidiaries' officers, General Partner, limited partners, Trust Managersdirectors, employees, agents, representatives and affiliates and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries)the C.R. ▇▇▇▇▇▇ ▇▇▇sidiaries) (collectively, as applicable, the "C.R. ▇▇▇▇▇▇ ▇▇▇resentatives") not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholdersstockholders but excluding the transactions contemplated by this Agreement) with respect to a merger, acquisition, tender offerconsolidation, exchange offerbusiness combination, consolidation recapitalization, liquidation or similar transaction involving, or any purchase of all or any a significant portion amount of the assets of or more than 25% of any equity securities (or any debt securities convertible into equity securities) of, such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement C.R. ▇▇▇▇▇▇ (any such proposal or offer offering being hereinafter referred to as an "Acquisition Proposal") or engage or participate in any negotiations or discussions concerning, or provide any confidential information or data to, or have any discussions with, any corporation, partnership, person or other entity or group relating to an any Acquisition Proposal, or otherwise assist or facilitate any effort or to attempt to make or implement an Acquisition Proposal; (iib) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.16.3.(a); and (iiic) that it will notify the other party immediately Acquiror promptly if any such inquiries or proposals (whether formal or informal) are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued withwith it or any of the C.R. ▇▇▇▇▇▇ ▇▇▇resentatives and will promptly communicate to Acquiror the substantive terms of any proposal or inquiry which it may receive and the identity of the person from whom such proposal or inquiry is received. Notwithstanding the foregoing and provided none of C.R. ▇▇▇▇▇▇, it; provided, however, that nothing contained ▇▇e C.R. ▇▇▇▇▇▇ ▇▇▇sidiaries or the C.R. ▇▇▇▇▇▇ Representatives is otherwise in violation of this Section 7.1 shall prohibit 6.3.(a), the Board of Directors of the General Partner of RELP (the "Board of Directors") C.R. ▇▇▇▇▇▇ ▇▇▇ furnish information to, or the Board of Trust Managers from (x) 19 furnishing information to or entering enter into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposalproposal in writing, not subject to any financing contingency, to acquire C.R. ▇▇▇▇▇▇ ▇▇▇suant to a merger, consolidation, share exchange, purchase of a substantial portion of the assets, 3 business combination or other similar transaction, if, and only to the extent that, that (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith (based on the written opinion of C.R. ▇▇▇▇▇▇'▇ ▇▇▇side counsel) that such action is required for it the Board of Directors to comply with its fiduciary duties to limited partners or shareholders, as applicable, stockholders imposed by law as advised by counsellaw, (B) the Board of Directors determines in good faith (based on the written opinion of a financial advisor of nationally recognized reputation) that such transaction would be more favorable to C.R. ▇▇▇▇▇▇'▇ ▇▇▇ckholders than the Offer, (C) prior to or concurrently with furnishing such information to, or entering into discussions or negotiations with, such a person or entity, such party provides C.R. ▇▇▇▇▇▇ ▇▇▇vides written notice to the other party to this Agreement Acquiror to the effect that it is furnishing information to, or entering into discussions or negotiations with, such a person or entity, and (CD) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement C.R. ▇▇▇▇▇▇ ▇▇▇ps Acquiror informed of the status (but not the terms) substantive terms of any such discussions or negotiations; and (y) . 2. Section 9.3 of the Merger Agreement is hereby amended to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing read in this Section 7.1 shall (i) permit any party to terminate this Agreement (except its entirety as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreement.follows:
Appears in 2 contracts
Sources: Tender Offer and Merger Agreement (Gibson C R Co Inc), Tender Offer and Merger Agreement (Nelson Thomas Inc)
Acquisition Proposals. Prior to the Effective Time, RELP STH and AIP HHTI each agree (ia) that neither of them nor any of their Subsidiaries shall, and each of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managersdirectors, employees, agents, affiliates and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, ) not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") Proposal or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (iib) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.18.1; and (iiic) that it will notify the other party immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 8.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers such party from (xi) 19 prior to the adoption of this Agreement by the stockholders of such party, furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, such party determines in good faith that such action is required appropriate for it such body to comply with its fiduciary duties determine whether the Acquisition Proposal constitutes or could lead to limited partners a Superior Proposal, or shareholders, as applicable, imposed by law as advised by counselthe Board of Directors of such party determines in good faith that such action is appropriate because the Acquisition Proposal constitutes a Superior Proposal, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel)entity, such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (yii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 8.1 shall (ix) permit any party to terminate this Agreement (except as specifically provided in Article IX 10 hereof), (iiy) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iiiz) affect any other obligation of any party under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Supertel Hospitality Inc), Merger Agreement (Humphrey Hospitality Trust Inc)
Acquisition Proposals. Prior to the Effective Time, RELP and AIP each agree EWR agrees that:
(ia) that neither of them it nor any of their the EWR Subsidiaries shall, and each of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation consolidation, sale of assets or similar transaction involving, or any purchase of involving all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party EWR or any of its the EWR Subsidiaries, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, concerning or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; ;
(iib) that it will not permit any of its officers, employees, agents or financial advisors to engage in any of the activities described in Section 4.1(a);
(c) it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above in Section 4.1(b) of the obligations undertaken in this Section 7.14.1; and and
(iiid) that it will notify the other party EQR immediately if EWR receives any such inquiries or proposals are received by, any such information is requested fromproposals, or any requests for such information, or if any such negotiations or discussions are sought to be initiated or continued with, with it; provided, however, that nothing contained in this Section 7.1 4.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers EWR from (xi) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, that (A) the Board of Directors or Board of Trust Managers, as applicable, EWR determines in good faith that such action is required for it the Board of Directors to comply with its fiduciary duties to limited partners or shareholders, as applicable, shareholders imposed by law as advised by counsellaw, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party EWR provides written notice to the other party to this Agreement EQR to the effect that it is furnishing information to, or entering into discussions with, such person or entity, entity and (C) subject to any confidentiality agreement with such person or entity (which such party EWR determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, shareholders imposed by law as advised by counsellaw), such party EWR keeps the other party to this Agreement EQR informed of the status (but not the terms) of any such discussions or negotiations; and (yii) to the extent applicable, complying with Rule taking and disclosing to the EWR shareholders a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 4.1 shall (ix) permit any party EWR to terminate this Agreement (except as specifically provided in Article IX 7 hereof), (iiy) permit any party EWR to enter into any an agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party EWR shall not enter into any an agreement with any person Person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary formform executed as provided above)), ) or (iiiz) affect any other obligation of any party EWR under this Agreement; provided, however, that the Board of Directors of EWR may approve and recommend a Superior Acquisition Proposal and, in connection therewith, withdraw or modify its approval or recommendation of this Agreement and the Merger. Any disclosure that the Board of Directors of EWR may be compelled to make with respect to the receipt of an Acquisition Proposal in order to comply with its duties to stockholders of EWR or Rule 14d-9 or 14e-2 will not constitute a violation of this Section 4.1 provided that such disclosure states that no action will be taken by the Board of Directors of EWR with respect to the withdrawal of its recommendation of the transactions contemplated hereby or the approval or recommendation of any Acquisition Proposal except in accordance with this Section 4.1. As used herein, "Superior Acquisition Proposal" means a bona fide Acquisition Proposal made by a third party which a majority of the members of the Board of Directors of EWR determines in good faith to be more favorable to EWR's shareholders from a financial point of view than the Merger and which the Board of Directors of EWR determines is reasonably capable of being consummated.
Appears in 2 contracts
Sources: Merger Agreement (Equity Residential Properties Trust), Merger Agreement (Evans Withycombe Residential Inc)
Acquisition Proposals. Prior to (a) Unless and until this Merger Agreement shall have been terminated in accordance with its terms, the Effective Time, RELP Company agrees and AIP each agree covenants that (i) that neither of them it nor any of their Subsidiaries Company subsidiary shall, and each of them shall direct and use its best efforts to cause its respective officers, General Partnertrustees, limited partners, Trust Managersdirectors, employees, agents, affiliates agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, the Company subsidiaries) not to, directly or indirectly, initiate, solicit or encourage, directly or indirectly, knowingly encourage any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase purchase, sale, lease, issuance or other disposition (except as permitted under Section 9.1 hereof) of all (A) 10% or any significant portion more of the assets or assets; (B) any equity securities (or any debt options, rights or warrants to purchase, or securities convertible into into, such securities) representing 10% or more of the voting power; (C) partnership interests; or (D) any transaction in which any person shall acquire beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act), or the right to acquire beneficial ownership, of 10% or more of the equity securities) of, such party of the Company or any of its Subsidiariesthe Company subsidiary, other than the transactions contemplated by this Merger Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) that it the Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.110.6; and (iii) that it the Company will notify the other party Purchaser immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; providedthe Company and such notification will include the specific details with respect to any such inquiries, howeverproposals, that nothing contained requests, negotiations or discussions.
(b) Notwithstanding anything set forth in this Section 7.1 shall prohibit Merger Agreement to the contrary (i) the Board of Directors Trustees of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing Company may furnish information to or entering enter into discussions or negotiations with, with any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors Trustees of the Company, after consultation with and based upon the advice of ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP or another nationally recognized law firm selected by the Board of Trust Managers, as applicableTrustees of the Company, determines in good faith that such action is required for it the Board of Trustees to comply with its fiduciary duties to limited partners or shareholdersshareholders under applicable law, as applicable, imposed by law as advised by counsel, (B) provided that prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party the Company provides written notice to the other party to this Agreement Purchaser to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party Company keeps the other party to this Agreement Purchaser regularly informed of the status (but not the terms) of any such discussions or negotiations; and (yii) the Board of Trustees of the Company may, to the extent applicable, complying comply with Rule Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Eastgroup Properties Inc), Merger Agreement (Eastgroup Properties Inc)
Acquisition Proposals. Prior to The Company agrees that none of it, the Effective Time, RELP and AIP each agree (i) that neither of them nor Company Bank or any of their Subsidiaries respective officers and directors shall, and each of them the Company shall direct and use its reasonable best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, the Company Bank) not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholdersshareholders of the Company) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction transaction, other than pursuant to this Plan, involving, or any purchase of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party the Company or any of its Subsidiaries, other than the transactions contemplated by this Agreement Company Bank (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or or, except to the extent legally required for the discharge by the board of directors of its fiduciary duties as advised in writing by such board's counsel, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) that it . The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each shall make all reasonable efforts to enforce any confidentiality agreements to which it or the Company Bank is a party. The Company will take the necessary steps to inform the appropriate individuals or entities referred to above in the first sentence hereof of the obligations undertaken in this Section 7.1; and (iii) that it 4.1. The Company will notify the other party Monarch immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit with the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this AgreementCompany.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Monarch Bancorp), Merger Agreement (California Commercial Bankshares)
Acquisition Proposals. Prior to the Effective Time, RELP and AIP each agree (i) The Company agrees that neither of them it nor any of its Subsidiaries nor any of its or their Subsidiaries respective officers and directors shall, and each of them that the Company shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, and its Subsidiaries' employees, agents, affiliates agents and representatives (including, without limitation, including any investment banker, attorney or accountant retained by it or any of its Subsidiaries)) (such officers, directors, employees, agents and representatives sometimes collectively referred to herein as applicable, "Representatives") not to, initiate, solicit or encourage, directly or indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries or the making or implementation of any proposal or offer (including, without limitation, or entering into any proposal or offer to its shareholders) agreement with respect to a merger, acquisitionreorganization, tender offer, exchange offershare exchange, consolidation or similar transaction involving, or any purchase of all 15% or any significant portion more of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party the Company or any of its Subsidiaries, other than the transactions contemplated by this Agreement Subsidiaries (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any of its Subsidiaries nor any of their respective officers and directors shall, and that the Company shall direct and cause its and its Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person Person relating to to, an Acquisition Proposal, whether made before or after the date of this Agreement, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or its Board of Directors from (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (B) providing information in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Board of Directors receives from the Person so requesting such information an executed confidentiality agreement ("Third Party Confidentiality Agreement") on terms equivalent to those contained in the Confidentiality Agreement (as defined in Section 9.7); (C) engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal; or (D) recommending an unsolicited bona fide written Acquisition Proposal to the stockholders of the Company, if and only to the extent that, prior to taking any such action (i) in each such case referred to in clause (B), (C) or (D) above, the Board of Directors of the Company determines in good faith after receipt of an opinion from its outside legal counsel experienced in such matters that such action is necessary in order for its directors to comply with their respective fiduciary duties under applicable Law and (ii) in each case referred to in clause (C) or (D) above, the Board of Directors of the Company determines in good faith (after consultation with its financial advisor) that it such Acquisition Proposal, if accepted, is reasonably likely to be consummated, 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 superior to the transaction contemplated by this Agreement, taking into account, among other things, the long-term prospects and interests of the Company and its stockholders (any such superior Acquisition Proposal being referred to in this Agreement as a "Superior Proposal"). The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each foregoing. The Company agrees that it will take the necessary steps to promptly inform the individuals or entities referred to above its Representatives of the obligations undertaken in this Section 7.1; 6.2 and (iii) that it in the Confidentiality Agreement. The Company will notify the other party Parent immediately (but, in any event, no less than 48 hours thereafter) if any such inquiries Acquisition Proposal or proposals are inquiry related thereto is received by, any such information is requested from, or any such discussions or negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board Company or any of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard Representatives relating to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit , indicating the name of such Person and the material terms and conditions of any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during and thereafter shall keep Parent informed, on a current basis, of the term status and terms of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an such Acquisition Proposal (other than and the status of any such negotiations or discussions. The Company also will promptly request each Person that has heretofore executed a confidentiality agreement in customary form)), connection with its consideration of an Acquisition Proposal to return all confidential information heretofore furnished to such Person by or (iii) affect on behalf of it or any other obligation of any party under this Agreementits Subsidiaries.
Appears in 1 contract
Acquisition Proposals. Prior to the Effective Time, RELP and AIP each agree (ia) The Company agrees that neither of them it nor any of their its Subsidiaries nor any of the officers and directors (other than any directors designated by any of the Novartis Companies) of it or its Subsidiaries shall, and each of them that it shall direct and use its best commercially reasonable efforts to cause its respective officers, General Partner, limited partners, Trust Managers, and its Subsidiaries' employees, agents, affiliates agents and representatives (including, without limitation, including any investment banker, attorney attorney, consultant or accountant (collectively, "REPRESENTATIVES") retained by it or any of its Subsidiaries), as applicable, it) not to, directly or indirectly, initiate, solicit or encourage, directly knowingly encourage or indirectly, facilitate any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to to: (i) a merger, acquisitionreorganization, tender offer, exchange offershare exchange, consolidation or similar transaction involving, or involving the Company; (ii) any purchase of all or any significant material portion of the equity interest in the Company or of 30% or more of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party or any of the Company and its Subsidiaries, other than taken as a whole; (iii) the transactions contemplated adoption by this Agreement the Company of a plan of liquidation or recapitalization; or (iv) any combination of the foregoing (any such proposal or offer being hereinafter referred to as an "Acquisition ProposalACQUISITION PROPOSAL"). The Company further agrees that neither it nor any of its Subsidiaries nor any of the officers and directors (other than any directors designated by any of the Novartis Companies) of it or its Subsidiaries shall, and that it shall use its commercially reasonable efforts to cause its and its Subsidiaries' Representatives not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person Person relating to an Acquisition Proposal, or otherwise knowingly encourage or facilitate any effort or attempt to make or implement an Acquisition Proposal; PROVIDED, HOWEVER, that nothing contained in this Agreement shall prevent the Company or the Independent Directors or the Company Board from (iix) complying with its disclosure obligations under Sections 14d-9 and 14e-2 of the Exchange Act with regard to an Acquisition Proposal; PROVIDED that if such disclosure has the effect of withdrawing, modifying or qualifying the Recommendation in a manner adverse to Novartis or the approval of this Agreement by the Independent Directors or the Company Board, Novartis shall have the right to terminate this Agreement to the extent set forth in Section 9.4 of this Agreement; and (y) at any time prior to, but not after, the conditions set forth in Section 8.1(a) have been satisfied, (A) providing information in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal (provided, that for purposes of this Section 7.2(a)(y) an Acquisition Proposal must involve the acquisition of in excess of 50% of the shares of Common Stock) if the Company receives from the Person so requesting such information an executed confidentiality agreement on customary terms; (B) engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal if the Company receives from such Person an executed confidentiality agreement as described in (A) above; or (C) withdrawing, modifying or qualifying the Recommendation, or recommending such an Acquisition Proposal, in each case if and only to the extent that (I) in each such case referred to in clause (A), (B) or (C) above, the Company Board or the Independent Directors, as applicable, determines in good faith after consultation with outside legal counsel that such action is necessary in order for its directors to comply with their fiduciary duties under applicable Law and (II) in each case referred to in clause (B) or (C) above, the Company Board or the Independent Directors, as applicable, determines in good faith (after consultation with its financial advisor and counsel) that such Acquisition Proposal, if accepted, is reasonably likely to be consummated, taking into account all legal, financial, regulatory and other aspects of the proposal, the likelihood of obtaining financing, and the Person making the proposal and would, if consummated, result in a transaction more favorable to the Company's stockholders from a financial point of view than the transaction contemplated by this Agreement taking into account any change in the proposal proposed by Novartis; and (III) in the case of clause (C), Novartis shall have had written notice of the Company Board's or the Independent Directors', as applicable, intention to take the action referred to in clause (C) at least three Business Days prior to the taking of such action by the Company Board or the Independent Directors, as applicable (any such more favorable Acquisition Proposal is referred to in this Agreement as a "SUPERIOR PROPOSAL").
(b) The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and (iii) that it will notify the other party immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreement.Person conducted
Appears in 1 contract
Acquisition Proposals. Prior to Until the Effective Timeearlier of (a) the Closing or (b) the termination of this Agreement in accordance with Section 10.4 hereof, RELP the Sellers shall not, and AIP shall cause each agree (i) that neither member of them nor any of their Subsidiaries shallthe Company Group, and each of them shall direct and use its best efforts to cause its their respective officers, General Partner, limited partners, Trust Managersdirectors, employees, agents, affiliates and Affiliates, investment bankers, attorneys or other advisors or representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, the “Representatives”) not to, initiatedirectly or indirectly: (i) initiate contact with, solicit solicit, encourage or encouragedisclose, directly or indirectly, any inquiries or information concerning the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, Business or any purchase member of all the Company Group to, (ii) afford any access to the personnel, offices, facilities, assets, properties, books or records of the Business or any significant portion member of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data Company Group to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and (iii) that it will notify the other party immediately if enter into any such inquiries discussion, negotiation or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations agreement with, any person or entity in connection with the acquisition of, or any proposal for the acquisition of, any or all of the assets or properties of the Business or any member of the Company Group, or the capital stock of any of any member of the Company Group or any other Affiliate that makes an unsolicited bona fide Acquisition Proposalown such assets or properties, ifwhether directly or indirectly, and only to the extent thatby operation of law or otherwise. The Sellers shall promptly, but in no event later than two (2) Business Days, (A) inform the Board of Directors Purchaser that they have received a written proposal or Board of Trust Managersother written communication, as applicable, determines in good faith that relating to any such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, acquisition and (B) prior upon the request of the Purchaser, furnish the Purchaser with a copy thereof. Notwithstanding the foregoing, this Section 4.15 shall not apply to furnishing such information toany actions taken by the Sellers in connection with its efforts to sell P▇▇▇▇▇ Dodge Suzhou Holdings, or entering into discussions or negotiations withInc. (“PD Suzhou”) to a third party; provided, such person or entity, such party provides written notice the Sellers shall keep the Purchaser reasonably informed as to the other party identity of interested parties and the terms of proposals relating to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but shall not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any definitive agreement with respect to an Acquisition Proposal during sell such entity without the term of this Agreement (it being agreed that during the term of this AgreementPurchaser’s prior written consent, no party which consent shall enter into any agreement with any person that provides for, not be unreasonably withheld or in any way facilitates, an Acquisition Proposal delayed (other than in respect of the amount, nature and payment date of the purchase price therefor, consent as to which shall be at the Purchaser’s sole discretion). For purposes of clarity, any proceeds (including the fair market value of non-cash proceeds) of the sale of PD Suzhou prior to the Closing shall be included as a confidentiality agreement in customary form)), or (iii) affect any other obligation PDC Withdrawal for purposes of any party under this Agreementthe determination of the Closing Netting Amount.
Appears in 1 contract
Acquisition Proposals. Prior (a) From the date of this Agreement through the earlier of the termination of this Agreement pursuant to Article IX and the Effective Time, RELP and AIP each agree (i) that neither of them nor any of their Subsidiaries shall, and each of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries)Closing, as applicable, the Company shall not, and shall cause the VH Companies and its and their respective officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer indirectly (including, without limitation, any proposal or offer to its shareholders) except with respect to a Parent and its Affiliates): (i) take any action to solicit, invite or encourage the submission of any inquiries, proposals or indications of interest, or enter into any discussions, negotiations, understandings, arrangements or Contracts relating to the direct or indirect disposition, whether by sale, merger, acquisitionshare exchange, tender offerbusiness combination or otherwise, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant equity securities of the VH Companies or a material portion of their respective businesses or Assets (each an “Acquisition Proposal”); (ii) provide any information to any third party relating to any VH Company, or afford access to the assets properties, assets, books or records of the VH Companies to, otherwise cooperate in any equity securities way with, or knowingly assist, participate in, facilitate or encourage any effort by any third party that is seeking to make, or has made, an Acquisition Proposal or a modification of a previously received Acquisition Proposal; or (or iii) enter into any debt securities convertible into equity securitiesContract with respect to an Acquisition Proposal.
(b) of, such party or any From the date of its Subsidiaries, other than the transactions contemplated by this Agreement through the earlier of the Closing Date and the date of termination of this Agreement pursuant to Article IX, as applicable: (i) the Company shall, and shall cause the VH Companies and direct its and their respective officers, directors, employees, investment bankers, attorneys, accountants, consultants and other agents, advisors and representatives to, cease and terminate immediately any such proposal existing discussions or offer being hereinafter referred negotiations with respect to as an "or in furtherance of any Acquisition Proposal"; and (ii) or engage in the event that during such period any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to VH Company receives an Acquisition Proposal, or obtains or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) receives notice that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and (iii) that it will notify the other party immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during is likely to be made, the term Company shall provide Parent with prompt written notice thereof, which written notice shall include the terms of, and the identity of this Agreement (it being agreed that during the term of this AgreementPerson or Persons making or likely to make, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an such Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this AgreementProposal.
Appears in 1 contract
Sources: Merger Agreement
Acquisition Proposals. Prior to the Effective Time, RELP Bank agrees that it and AIP each agree (i) that neither of them nor any of their Subsidiaries shallits --------------------- officers and directors shall not, and each of them that it shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, it) not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase purchase, sale or other disposition of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement Bank (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or or, except to the extent legally required for the discharge by its board of directors of its fiduciary duties as determined upon consultation with counsel, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) . Bank agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each foregoing. Bank agrees that it will take the necessary steps to inform the appropriate individuals or entities referred to above in the first sentence hereof of the obligations undertaken by each of them in this Section 7.1; and (iii) 4.1. Bank agrees that it will notify the other party SBI immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations negotiations, or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Affiliation (Susquehanna Bancshares Inc)
Acquisition Proposals. Prior to the Effective TimeAllegiant and each Allegiant Subsidiary --------------------- shall not, RELP and AIP each agree (i) that neither of them nor any of their Subsidiaries shalldirectly or indirectly, and each of them shall direct instruct and otherwise use its best efforts to cause its their respective officers, General Partner, limited partners, Trust Managersdirectors, employees, agents, affiliates and agents or advisors or other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, consultants not to, initiate, solicit or encourage, directly or indirectly, (i) solicit or initiate any inquiries proposals or the making offers from any person relating to any acquisition or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion a material amount of the assets of (other than purchases or sales of loans or securities in the ordinary course of business consistent with past practice), or any equity securities (of, or any debt securities convertible into equity securities) ofmerger, such party consolidation or business combination with, Allegiant or any of its Subsidiaries, other than the Allegiant Subsidiary (such transactions contemplated by this Agreement (any such proposal or offer being hereinafter are referred to herein as an "Acquisition ProposalTransactions") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) except to the extent that it will the Board of Directors of Allegiant is required, in a written opinion of counsel to the Board of Directors of Allegiant, in the exercise of its fiduciary duties in accordance with applicable law, to participate in any discussion or negotiation regarding, or furnish to any other person any information with respect to, an Acquisition Transaction; provided, however, that nothing -------- ------- contained in this Section 5.1 shall restrict or prohibit any disclosure by Allegiant that is required in any document to be filed with the Commission after the date of this Agreement or any disclosure that, in the written opinion of counsel to the Board of Directors of Allegiant, is otherwise required under applicable law. Allegiant will, and cause each Allegiant Subsidiary to, immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and (iii) that it foregoing. Allegiant will notify the other party National City immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations negotiation or discussions discussion are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") with Allegiant or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement Allegiant Subsidiary with respect to an a proposed Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this AgreementTransaction.
Appears in 1 contract
Acquisition Proposals. Prior to the Effective Time, RELP and AIP each agree the Company --------------------- agrees
(ia) that neither of them it nor any of their its Subsidiaries shall, and each shall authorize or permit any of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managersdirectors, employees, agents, affiliates agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, not to, ) to initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholdersstockholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party the Company or any of its Subsidiaries, other than the transactions contemplated by this Agreement Subsidiaries (any such proposal or offer being hereinafter referred to as an "Acquisition ----------- Proposal") or engage in any negotiations concerning, or provide any confidential -------- information or data to, or have any discussions with, any person Person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (iib) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.16.7; and (iiic) that it will notify the other party FKWW and FKW Sub immediately if any such inquiries or proposals are received by, any such information is requested received from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing -------- ------- contained in this Section 7.1 6.7 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers Company from (xi) 19 furnishing information to or entering into discussions or negotiations with, any person Person or entity that makes an unsolicited bona fide Acquisition Proposalproposal to acquire the Company pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of the assets, business combination or other similar transaction, if, and only to the extent that, that (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith faith, based as to legal matters on advice of outside legal counsel, that the failure to take such action is required for it would involve a substantial risk of breach of fiduciary duty to comply with its fiduciary duties to limited partners or shareholders, as applicable, the Company's shareholders imposed by law as advised by counselapplicable law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person Person or entity, such party the Company provides written notice to the other party to this Agreement FKWW and FKW Sub to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person Person or entity, and (C) subject to any confidentiality agreement with such person Person or entity (which such party determined the Company executed after determining in good faith was required faith, based as to be executed in order for legal matters on advice of outside counsel, that the failure to take such action would involve a substantial risk of breach of the Board of Directors or Board of Trust Managers, as applicable, Directors' fiduciary duty to comply with its fiduciary duties to limited partners or shareholders, as applicable, stockholders imposed by law as advised by counselapplicable law), such party the Company keeps the other party to this Agreement FKWW and FKW Sub informed of the status (but not the terms) of any such discussions or negotiations; and (yii) to the extent applicable, complying with Rule 14d-9 and 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 6.7 shall (ix) permit any party to terminate this Agreement (except as specifically provided in Article IX Section 8.1 hereof), (iiy) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person Person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iiiz) affect any other obligation of any party under this Agreement.
Appears in 1 contract
Acquisition Proposals. Prior to ASC and the Effective Time, RELP and AIP each Shareholders agree that from the date of this Agreement through the expiration of the Exercise Period (ia) that neither of them the Shareholders, nor ASC, nor any of their Subsidiaries its respective officers and directors shall, and each of them ASC and the Shareholders shall direct and use its their best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, ASC's employees, agents, affiliates agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of of, all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement ASC (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information Confidential Information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (iib) that it the Shareholders and ASC will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above in the first sentence hereof of the obligations undertaken in this Section 7.16.3; and (iiic) that it ASC and the ----------- Shareholders will notify the other party PHC-SUB immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") ASC or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this AgreementShareholders.
Appears in 1 contract
Acquisition Proposals. Prior to the Effective Time, RELP and AIP each agree Pac Rim agrees ---------------------
(ia) that neither of them Pac Rim nor any of its Subsidiaries nor its or their Subsidiaries shall, and each of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managersdirectors, employees, agents, affiliates agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), ) shall (except to the extent necessary to comply with fiduciary duties to stockholders as applicable, not to, provided in this Section 7.1) initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholdersstockholders) with respect to a merger, acquisition, consolidation, tender offer, exchange offer, consolidation business combination or similar transaction involving, or any purchase of all or any significant portion more than forty percent (40%) of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party Pac Rim or any of its Subsidiaries, other than the transactions contemplated by this Agreement Subsidiaries (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (iib) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the any individuals or entities referred to above with whom an Acquisition Proposal is currently being discussed or hereinafter making an Acquisition Proposal of the obligations undertaken in this Section 7.1; and (iiic) that it will notify the other party Parent immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, itwith Pac Rim or its Subsidiaries; provided, however, that nothing contained in this Section 7.1 shall shall, prior to approval of the transaction described herein by the holders of Pac Rim Common Stock, prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers Pac Rim from (xi) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide written Acquisition Proposal, if, and only to the extent that, (A) such Acquisition Proposal is on terms that the Board of Directors or of Pac Rim determines, with the assistance of its financial advisors, represents a financially superior transaction to the holders of Pac Rim Common Stock compared with the Merger, (B) such Acquisition Proposal is not conditioned upon the acquiror obtaining financing, (C) the Board of Trust Managers, as applicable, Directors of Pac Rim determines in good faith faith, based as to legal matters on the written opinion of outside legal counsel, that such action is required for it the Board of Directors to comply with its fiduciary duties to limited partners or shareholders, as applicable, stockholders imposed by law as advised by counsellaw, (BD) two (2) business days prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party Pac Rim provides written notice to the other party to this Agreement Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and furnishes Parent with the terms of and a copy of such Acquisition Proposal and (CE) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managersthereafter, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party Pac Rim keeps the other party to this Agreement Parent informed of the status (but not and the terms) of any such discussions or negotiations; and (yii) to the extent applicable, complying with Rule 14e-2 14e-2(a) promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (ix) permit any party to terminate this Agreement (except as specifically provided in Article IX 9 hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iiiz) affect any other obligation of any party under this Agreement.
Appears in 1 contract
Acquisition Proposals. Prior (a) Subject to the Effective Timeremainder of this Section 7.7, RELP and AIP each agree (i) that neither none of them nor any of their Subsidiaries shall, and each of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates and representatives (including, without limitation, any investment banker, attorney or accountant retained by it the Company or any of its SubsidiariesSubsidiaries shall (whether directly or indirectly through Affiliates, directors, officers, employees, representatives, advisors or other intermediaries), as applicable, not to, initiate, solicit or encourage, nor shall (directly or indirectly, any inquiries ) the Company authorize or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party or permit any of its or its Subsidiaries’ controlled Affiliates, officers, directors, representatives, advisors or other intermediaries or Subsidiaries to: (i) solicit, initiate or knowingly facilitate the submission of inquiries, proposals or offers from any Person (other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"Parent) or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an any Acquisition Proposal, or otherwise facilitate agree to or recommend any effort or attempt to make or implement an Acquisition Proposal; (ii) that enter into any agreement to (x) consummate any Acquisition Proposal, (y) approve any Acquisition Proposal or (z) in connection with any Acquisition Proposal, require it will to abandon, terminate or fail to consummate the Merger; (iii) enter into or participate in any discussions or negotiations in connection with any Acquisition Proposal or inquiry with respect to any Acquisition Proposal, or furnish to any Person any non-public information with respect to its business, properties or assets in connection with any Acquisition Proposal; or (iv) agree to resolve to take, or take, any of the actions prohibited by clause (i), (ii) or (iii) of this sentence. The Company shall immediately cease cease, and cause its representatives, advisors and other intermediaries to be terminated immediately cease, any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals foregoing. Any violation of this Section 7.7 by any officer, director or entities referred to above representative of the obligations undertaken Company (other than the Persons listed in Section 7.7 of the Disclosure Letter) shall be deemed to be a breach of this Section 7.1; and (iii7.7 by the Company. For purposes of this Section 7.7, the term “Person” means any person, corporation, entity or “group,” as defined in Section 13(d) that it will notify of the Exchange Act, other party immediately if any such inquiries or proposals are received bythan, any such information is requested fromwith respect to the Company, Parent or any such negotiations or discussions are sought to be initiated or continued withSubsidiaries of Parent.
(b) Notwithstanding the foregoing, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner Company (acting upon the recommendation of RELP (the "Board of Directors") Special Committee), directly or the Board of Trust Managers from (x) 19 furnishing information to indirectly through Affiliates, directors, officers, employees, representatives, advisors or entering into discussions or negotiations withother intermediaries, any person or entity that makes an unsolicited bona fide Acquisition Proposalmay, if, and only prior to the extent thatCompany Stockholders Meeting, (Ai) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, Rule 14d-9 and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to any Acquisition Proposal (provided that any action taken or statement made to so comply that relates to an Acquisition Proposal. Nothing Proposal shall be deemed to be a Company Adverse Recommendation Change unless the Board of Directors of the Company (acting upon the recommendation of the Special Committee) reaffirms the Company Board Recommendation in this such statement or in connection with such action), or issue a “stop, look and listen” statement, (ii) engage in negotiations or discussions with any Person (and its representatives, advisors and intermediaries) that has made an unsolicited bona fide written Acquisition Proposal not resulting from or arising out of a breach of Section 7.1 shall 7.7(a), and/or (iii) 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 substantially concurrent with the time it is provided to such Person, in the case of each of clauses (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit or (iii), if, and only if, prior to taking such particular action, the Board of Directors of the Company (acting upon the recommendation of the Special Committee) has determined in good faith after consultation with its financial advisors and outside legal counsel that such Acquisition Proposal constitutes or would reasonably be expected to result in, a Superior Proposal.
(c) Notwithstanding anything in this Section 7.7 to the contrary, at any time prior to the receipt of the Required Company Vote, the Company’s Board of Directors (acting upon the recommendation of the Special Committee) may (x) withdraw, modify or amend in any manner adverse to Parent its approval or recommendation of this Agreement or the Merger (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 7.7 and which the Company’s Board of Directors (acting upon the recommendation of the Special Committee) determines in good faith, in consultation with its financial advisors and outside legal counsel is a Superior Proposal, in each case, if and only if, the Company’s Board of Directors (acting upon the recommendation of the Special Committee) 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 7.7(d) or (y) following receipt of an unsolicited bona fide written Acquisition Proposal that did not result from a breach of this Section 7.7 and which the Company’s Board of Directors (acting upon the recommendation of the Special Committee) determines in good faith, in consultation with its financial advisors and outside legal counsel is a Superior Proposal, terminate this Agreement in accordance with the provisions of Section 9.1(f) for the purpose of entering into a definitive acquisition agreement, merger agreement or similar definitive agreement (a “Company Acquisition Agreement”) with respect to such Superior Proposal, if, and only if, the Company’s Board of Directors (acting upon the recommendation of the Special Committee) 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 7.7(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 7.7(c)(x)(i), the Company shall provide Parent with prior written notice advising Parent it intends to effect a Company Adverse Recommendation Change and specifying, in reasonable detail, the reasons therefor, or (ii) under Section 7.7(c)(x)(ii) or Section 7.7(c)(y) the Company shall provide Parent with five (5) 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 an additional three (3) Business Day period) advising Parent that the Company’s Board of Directors (acting upon the recommendation of the Special Committee) intends to take such action, and if applicable, specifying the material terms and conditions of the Superior Proposal and that the Company shall, during such five (5) Business Day period (or subsequent three (3) Business Day period, if applicable), negotiate in good faith with Parent 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 or occurrence of (i) any Acquisition Proposal, (ii) any proposals, discussions, negotiations or inquiries that would reasonably be expected to lead to an Acquisition Proposal, and (iii) the material terms and conditions of any such Acquisition Proposal and the identity of the Person making any such Acquisition Proposal or with whom such discussions or negotiations are taking place, in each case, if such request for information, inquiry or proposal or discussions or negotiations would reasonably be expected to lead to an Acquisition Proposal. In addition, the Company shall promptly (but in any event within 24 hours) after the receipt thereof, provide to Parent copies of any written documentation material to understanding such Acquisition Proposal which is received by the Company from the Person (or from any representatives, advisors or agents of such Person) making such Acquisition Proposal or with whom discussions or negotiations would reasonably be expected to lead to an Acquisition Proposal. The Company shall not, and shall cause each of its Subsidiaries not to, terminate, waive, amend or modify any provision of any existing standstill or confidentiality agreement to which it or any of its Subsidiaries is a party, and the Company shall, and shall cause its Subsidiaries to, enforce the provisions of any such agreement; provided, however, that, notwithstanding anything to the contrary in this Agreement, the Company has waived any provision in any such agreement that prohibits the counterparty thereto from confidentially requesting the Company to amend or waive the standstill provision in such agreement (i.e., a “don't ask to waive” provision) to the extent necessary (any only to such extent) to enable such counterparty to convey confidentially to the Board of Directors of the Company an 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 Company’s ability to conduct good faith discussions in accordance with this Section 7.7 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 any other documentation material to enter into understanding such Acquisition Proposal (as determined by the Company in good faith) received by the Company from the Person (or from any agreement 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. The Company shall promptly provide to Parent any material non-public information concerning the Company provided to any other Person in connection with any Acquisition Proposal that was not previously provided to Parent. The Board of Directors of the Company shall promptly consider in good faith (in consultation with its outside legal counsel and financial advisors) any proposed alteration of the terms of this Agreement or the Merger proposed by Parent. Except in connection with a termination of this Agreement pursuant to Section 9.1(f), the Company shall not take any action to exempt any Person from, or make any acquisition of securities of the Company by any Person not subject to, any state takeover statute or similar statute or regulation that applies to Company with respect to an Acquisition Proposal during or otherwise, including the term restrictions on “business combinations” set forth in Section 203 of the DGCL, except for Parent, Merger Sub or any of their respective Subsidiaries or Affiliates, or the transactions contemplated by this Agreement (it being agreed that during and the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this AgreementVoting Agreements.
Appears in 1 contract
Acquisition Proposals. Prior to Except in connection with the Effective Timetransactions contemplated hereby, RELP unless and AIP each agree (i) that neither of them nor until this Agreement shall have been terminated in accordance with its terms for any of their Subsidiaries shallreason, NCE and each Principal Stockholder shall not and NCE shall communicate to all directors, officers and key employees of them shall direct NCE that they are not authorized to and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, not to, initiate, solicit or encouragemust not, directly or indirectly, (a) take any inquiries action to solicit, initiate submission of or the making or implementation of encourage any proposal or offer (including, without limitation, from any proposal person relating to any acquisition or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant (other than in the ordinary course of business) a portion of the assets of, or any equity securities (interest in, NCE, any merger or business combination with NCE, or any debt securities convertible into equity securities) public or private offering of shares of the capital stock of, such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement financing or joint venture involving NCE (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"), (b) or engage participate in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations regarding an Acquisition Proposal with any parties conducted heretofore Person other than AMRI and its affiliates and representatives, (c) furnish any information with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and (iii) that it will notify the other party immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only afford access to the extent thatproperties, (A) the Board books or records of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject NCE to any confidentiality agreement with such person Person that may consider making or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to has made an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement offer with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides forother than AMRI and its affiliates and representatives, or (d) otherwise cooperate in any way facilitateswith, or assist or participate in, facilitate or encourage, any effort or attempt by any Person other than AMRI and its affiliates and representatives to do or seek any of the foregoing. NCE and each of the Principal Stockholders shall promptly notify AMRI upon receipt of any offer or indication that any Person is considering making an offer with respect to an Acquisition Proposal (other than a confidentiality agreement in customary form))or any request for information relative to NCE, or (iii) affect shall promptly reject any other obligation such offer, and shall keep AMRI fully informed of the status and details of any party under this Agreementsuch offer, indication or request.
Appears in 1 contract
Acquisition Proposals. Prior to the Effective Time, RELP and AIP each agree the --------------------- Company agrees
(ia) that neither of them it nor any of their its Subsidiaries shall, and each shall authorize or permit any of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managersdirectors, employees, agents, affiliates agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, not to, ) to initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholdersstockholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party the Company or any of its Subsidiaries, other than the transactions contemplated by this Agreement Subsidiaries (any such proposal or offer being hereinafter referred to as an "Acquisition ----------- Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person Person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (iib) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.16.7; and (iiic) that it will notify the other party FKWW and FKW Sub immediately if any such inquiries or proposals are received by, any such information is requested received from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing -------- ------- contained in this Section 7.1 6.7 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers Company from (xi) 19 furnishing information to or entering into discussions or negotiations with, any person Person or entity that makes an unsolicited bona fide Acquisition Proposalproposal to acquire the Company pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of the assets, business combination or other similar transaction, if, and only to the extent that, that (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith faith, based as to legal matters on advice of outside legal counsel, that the failure to take such action is required for it would involve a substantial risk of breach of fiduciary duty to comply with its fiduciary duties to limited partners or shareholders, as applicable, the Company's shareholders imposed by law as advised by counselapplicable law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person Person or entity, such party the Company provides written notice to the other party to this Agreement FKWW and FKW Sub to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person Person or entity, and (C) subject to any confidentiality agreement with such person Person or entity (which such party determined the Company executed after determining in good faith was required faith, based as to be executed in order for legal matters on advice of outside counsel, that the failure to take such action would involve a substantial risk of breach of the Board of Directors or Board of Trust Managers, as applicable, Directors' fiduciary duty to comply with its fiduciary duties to limited partners or shareholders, as applicable, stockholders imposed by law as advised by counselapplicable law), such party the Company keeps the other party to this Agreement FKWW and FKW Sub informed of the status (but not the terms) of any such discussions or negotiations; and (yii) to the extent applicable, complying with Rule 14d-9 and 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 6.7 shall (ix) permit any party to terminate this Agreement (except as specifically provided in Article IX Section 8.1 hereof), (iiy) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person Person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iiiz) affect any other obligation of any party under this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Fox Television Stations Inc /De/)
Acquisition Proposals. Prior (a) Without limiting any of such party’s other obligations under this Agreement, each of Laguna and Orca agrees that, subject to Section 5.2(b) from and after the date hereof until the earlier of the Laguna Effective TimeTime and the termination of this Agreement in accordance with its terms, RELP and AIP each agree (i) that neither of them it nor any of their its Subsidiaries nor any of the officers, directors or employees of it or its Subsidiaries (including any member of the Laguna Board or the Orca Board, as applicable) shall, and each of them that it shall direct and use its reasonable best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, ’ Representatives not to, initiate, solicit or encourage, directly or indirectly, (i) initiate, solicit or knowingly facilitate or encourage (including by way of furnishing information) any inquiries inquiries, discussions or the making making, submission or implementation announcement of any proposal proposal, request or offer that constitutes, or could reasonably be expected to lead to or result in, an Acquisition Proposal; (includingii) have any discussion with any Person relating to an Acquisition Proposal (other than, without limitation, any proposal or offer to its shareholders) solely with respect to an Acquisition Proposal that does not result from a mergermaterial breach of this Section 5.2(a), acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase to clarify the terms of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, an Acquisition Proposal submitted to such party or any after the date of its Subsidiaries, other than the transactions contemplated by this Agreement (any for the sole purpose of enabling the Laguna Board or Orca Board, as applicable, to evaluate such proposal Acquisition Proposal for the purposes of Section 5.2(b)), engage in, continue or offer being hereinafter referred to as an "Acquisition Proposal") or engage otherwise participate in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to concerning an Acquisition Proposal, or otherwise knowingly facilitate any effort or attempt to make or implement an Acquisition Proposal; (iiiii) that it will immediately cease and cause provide any non-public or confidential information or data or afford access to be terminated any existing activitiesits books or records or directors, discussions officers, employees or negotiations with any parties conducted heretofore with respect advisors, to any of the foregoing and each will take the necessary steps Person in relation to inform the individuals an Acquisition Proposal; (iv) terminate, amend, release, modify, or entities referred fail to above of the obligations undertaken in this Section 7.1; and (iii) that it will notify the other party immediately if enforce any such inquiries provision of, or proposals are received bygrant any permission, waiver or request under, any such information is requested fromstandstill, confidentiality or similar agreement entered into by it or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP its Subsidiaries (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only other than to the extent that, (A) the Laguna Board of Directors or Board of Trust ManagersOrca Board, as applicable, determines in good faith that such action is required for it to comply faith, after consultation with its financial and outside legal advisors, that failure to take any such actions under this Section 5.2(a) would reasonably be expected to be inconsistent with the directors’ fiduciary duties to limited partners under applicable Law); (v) approve or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information torecommend, or entering into discussions propose publicly to approve or negotiations withrecommend, such person any Acquisition Proposal; (vi) approve or entityrecommend, such party provides written notice propose publicly to the other party to this Agreement to the effect that it is furnishing information toapprove or recommend, or entering into discussions withexecute or enter into, such person any letter of intent, agreement in principle, merger agreement, acquisition agreement, business combination agreement, option agreement or entity, and (C) subject other similar agreement relating to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement any of the preceding in customary form)this (vi), an “Alternative Acquisition Agreement”); (vii) take any action to make the provisions of any Takeover Law inapplicable to any transactions contemplated by any Acquisition Proposal; or (iiiviii) affect propose publicly or agree to do any other obligation of the foregoing related to any party under this AgreementAcquisition Proposal.
Appears in 1 contract
Sources: Business Combination Agreement (Ortho Clinical Diagnostics Holdings PLC)
Acquisition Proposals. Prior to the Effective TimeClosing Date, RELP and AIP each agree Enterprises agrees:
(ia) that neither of them it nor any of their its Subsidiaries or Affiliates shall, and each of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managersdirectors, employees, agents, affiliates agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, Subsidiaries or Affiliates) not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any the equity securities (or any debt securities convertible into equity securities) of, such party Enterprises or any of its SubsidiariesSubsidiaries or Affiliates, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, Proposal or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; ;
(iib) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and and
(iiic) that it will notify the other party Shoney's immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; providedPROVIDED, howeverHOWEVER, that nothing contained in this Section SECTION 7.1 shall prohibit the Board of Directors of the General Partner of RELP Enterprises from:
(the "Board of Directors"a) or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, :
(A1) the Board of Directors or Board of Trust Managers, as applicable, such party determines in good faith faith, based on the advice of Enterprises' Counsel, or such other counsel reasonably acceptable to the Shoney's, that such action is required for it the Board of Directors to comply with its fiduciary duties to limited partners or shareholders, as applicable, shareholders imposed by law as advised by counsel, law; and
(B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C2) subject to the exercise of fiduciary duties of Enterprises' Board of Directors, the requirements of the federal securities laws and any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Enterprises' Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, shareholders imposed by law as advised by counsellaw), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and and
(yb) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section SECTION 7.1 shall shall: (ix) permit any party Enterprises to terminate this Agreement (except as specifically provided in Article IX ARTICLE X hereof), ) or (iiy) permit Enterprises or any party of its Subsidiaries to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party none of Enterprises or its Subsidiaries shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreement.
Appears in 1 contract
Acquisition Proposals. Prior to the Effective Time, RELP and AIP each agree the Company agrees (ia) that neither of them it nor any of their its Subsidiaries shall, and each shall authorize or permit any of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managersdirectors, employees, agents, affiliates agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, not to, ) to initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholdersstockholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party the Company or any of its Subsidiaries, other than the transactions contemplated by this Agreement Subsidiaries (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person Person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (iib) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.16.7; and (iiic) that it will notify the other party FKWW and FKW Sub immediately if any such inquiries or proposals are received by, any such information is requested received from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreement.,
Appears in 1 contract
Sources: Merger Agreement (International Family Entertainment Inc)
Acquisition Proposals. Prior During the period (the "Pre- Closing Covenant Period") between the date hereof and the earliest to occur of the Effective TimeClosing or the termination of this Agreement, RELP and AIP each agree (i) that neither of them nor any of their Subsidiaries shallthe Seller will not, and each of them shall direct will cause the Company and use its best efforts to cause Subsidiaries not to, and the Seller will instruct its respective officers, General Partner, limited partners, Trust Managersdirectors, employees, agents, affiliates and advisors or other representatives (includingincluding those of the Company and its Subsidiaries) not to, without limitation(i) solicit, initiate or encourage any proposals or offers from any person or entity relating to, or enter into (or continue) any discussions concerning, any investment bankeracquisition or purchase of all or a material amount of the assets of, attorney or accountant retained any securities of, or any merger, consolidation or business combination with, the Company or any Subsidiary (any such transaction, a "Competitive Transaction"), (ii) enter into any agreement regarding a Competitive Transaction, (iii) with respect to any effort or attempt by it any person or entity to do or seek any of the foregoing, (a) participate in any discussions or negotiations, (b) furnish to any other person or entity any confidential information with respect to the Company, any Subsidiary or the Business, or (c) otherwise cooperate in any way with, or assist or participate in, or facilitate or encourage any such effort. During the Pre-Closing Covenant Period, the Seller and the Company will promptly notify the Buyer in the event of any proposal or offer in respect of a Competitive Transaction. Notwithstanding the foregoing, this Section 5.7 shall not restrict or prohibit the Seller or any its Affiliates (other than the Company or any of its Subsidiaries) from (i) providing third parties with information regarding the Seller and its Affiliates, including information which may include information relating to the Company and its Subsidiaries, in the course of taking or not taking any action with respect to a transaction solely relating to the Seller or any of its Affiliates (other than the Company or any of its Subsidiaries), as applicableor (ii) soliciting, not initiating, encouraging or considering any proposals or offers from any person or entity relating to, initiateor entering into, solicit (or encourage, directly or indirectlycontinuing) any discussions concerning, any inquiries acquisition or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion a material amount of the assets of, or any equity securities (of, or any debt securities convertible into equity securities) ofmerger, such party consolidation or business combination with, the Seller or any of its Affiliates (other than the Company or any of its Subsidiaries, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and (iii) that it will notify the other party immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreement.
Appears in 1 contract
Acquisition Proposals. Prior to the Effective TimeClosing Date, RELP and AIP each agree of the Sellers agrees that:
(i) that neither of them nor any of their Subsidiaries shall, and each of them she/he shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation consolidation, sale of assets or similar transaction involving, or any purchase of involving all or any significant portion substantially all of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party or any of its SubsidiariesTARGET, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, concerning or provide any confidential information or data to, or have any discussions discussion with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; ;
(ii) that it she/he will use her/his reasonable best efforts not to permit any of the officers, employees, agents or financial advisors of TARGET to engage in any of the activities described in Section 11(r)(i);
(iii) she/he will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above in Section 11(r)(ii) of the obligations undertaken in this Section 7.111(r); and and
(iiiiv) that it she/he will notify the other party immediately Kend▇▇ ▇▇▇ediately if TARGET receives any such inquiries or proposals are received by, any such information is requested fromproposals, or any requests for such information, or if any such negotiations or discussions are sought to be initiated or continued with, with it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board . (Remainder of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counselpage intentionally blank), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Kendle International Inc)
Acquisition Proposals. Prior to the Effective Time, RELP and AIP each agree (ia) The Company agrees that neither of them it nor any of their its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and each of them that it shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, and its Subsidiaries' employees, agents, affiliates agents and representatives (including, without limitation, including any investment banker, attorney or accountant retained by it or any of its Subsidiaries)) (the Company, as applicableits Subsidiaries and their officers, directors, employees, agents and representatives being the "Company Representatives") not to, initiate, solicit or encourage, directly or indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisitionreorganization, tender offershare exchange, exchange offerconsolidation, consolidation business combination, recapitalization, liquidation, dissolution or similar transaction involvinginvolving it, or any purchase of all or any significant portion sale of the consolidated assets or any equity securities (or any debt securities convertible into equity securitiesincluding without limitation stock of Subsidiaries) of, such party of it or any of its Subsidiaries, other than the transactions contemplated by this Agreement taken as a whole, having an aggregate value equal to 20% or more of its market capitalization, or any purchase or sale of, or tender or exchange offer for, 20% or more of its or any of its Subsidiaries' equity securities (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") ). The Company further agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or engage in its Subsidiaries shall, and that it shall direct and use its best efforts to cause the Company Representatives not to, directly or indirectly, have any negotiations concerning, discussion with or provide any confidential information or data to, or have to any discussions with, any person Person relating to or in contemplation of an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent either the Company or its Board of Directors from (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (B) 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 (C) recommending such an unsolicited bona fide written Acquisition Proposal to the shareholders of the Company if and only to the extent that, with respect to the actions referred to in clauses (B) or (C), (i) the Board of Directors of the Company concludes in good faith (after consultation with its outside legal counsel and its financial advisor) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the proposal and the Person making the proposal, and would, if consummated, result in a transaction more favorable to the Company's shareholders from a financial point of view than the transaction contemplated by this Agreement, (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal") (ii) the Board of Directors of the Company 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 duties to the Company's shareholders under applicable Law and (iii) prior to providing any information or data to any Person in connection with an Acquisition Proposal by any such Person, the Board of Directors of the Company shall receive from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement; provided, that such confidentiality agreement shall contain terms that allow the Company to comply with its obligations under this Section 6.2.
(b) The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each Acquisition Proposal. The Company agrees that it will take the necessary steps to promptly inform the individuals or entities referred to above each Company Representative of the obligations undertaken in this Section 7.1; and (iii) 6.2(a). The Company agrees that it will notify the other party immediately Parent promptly (in any event, within 24 hours) if any such inquiries inquiries, proposals or proposals offers are received by, any such information is requested from, or any such discussions or negotiations or discussions are sought to be initiated or continued with, it; providedany Company Representative indicating, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement connection with such person notice, the name of such Person making such inquiry, proposal, offer or entity (which request and the substance of any such party determined in good faith was required to be executed in order for the Board of Directors inquiries, proposals or Board of Trust Managersoffers. The Company thereafter shall keep Parent informed, as applicableon a reasonably current basis, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not and terms of any such inquiries, proposals or offers and the terms) status of any such inquiries, proposals or offers and the status of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (The Company also agrees that it being agreed will promptly request each Person that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than has heretofore executed a confidentiality agreement in customary form)), or (iii) affect any other obligation connection with its consideration of any party under this AgreementAcquisition Proposal to return or destroy all confidential information heretofore furnished to such Person by or on behalf of the Company or any of its Subsidiaries.
Appears in 1 contract
Acquisition Proposals. Prior to Neither the Effective TimeCompany nor the Shareholder will, RELP and AIP each agree (i) that neither nor will either of them nor authorize or permit any of their Subsidiaries shallofficer, and each of them shall direct and use its best efforts to cause its respective officersdirector, General Partneremployee, limited partners, Trust Managers, employees, agents, affiliates and representatives (including, without limitation, consultant or contractor or any investment banker, attorney attorney, accountant or accountant retained by it other agent or any Representative of its Subsidiaries), as applicable, not the Company or the Shareholder acting on either of their behalf to, initiate, solicit or encourage, directly or indirectly, (a) solicit, initiate or intentionally encourage the submission of any Acquisition Proposal or (b) participate in any discussions or negotiations regarding, or furnish to any Person any information in respect of, or take any other action to facilitate, any Acquisition Proposal or any inquiries or the making or implementation of any proposal that constitutes, or offer (including, without limitationmay reasonably be expected to lead to, any proposal or offer to its shareholders) with respect to a mergerAcquisition Proposal. Immediately after the execution and delivery of this Agreement, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion each of the assets or any equity securities (or any debt securities convertible into equity securities) ofCompany and the Shareholder will, such party or any of its Subsidiariesand will cause their respective officers, directors, employees, investment bankers, attorneys, accountants and other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data agents and Representatives to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) that it will immediately cease and cause to be terminated terminate any existing activities, discussions or negotiations with any parties conducted heretofore with in respect to of any possible Acquisition Proposal and will promptly inform Holdings of the foregoing receipt of any subsequent Acquisition Proposal. Each of the Company and each the Shareholder will take the all necessary steps to promptly inform the individuals or entities referred to above in the first sentence of this Section 7.1 of the obligations undertaken in this Section 7.1. “Acquisition Proposal” means an inquiry, offer or proposal regarding any of the following (other than the Contemplated Transactions) involving the Company, its subsidiaries or the Medical Corporations: (i) any merger, consolidation, share exchange, recapitalization, business combination or other similar transaction; and (ii) any sale of Shares or other equity interests or securities, (iii) that it will notify the any sale, lease, exchange, mortgage, pledge, Transfer or other party immediately if any such inquiries or proposals are received by, any such information is requested from, disposition of all or any such negotiations material portion of its assets in a single transaction or discussions are sought series of transactions; or (iv) any public announcement of a proposal, plan or intention to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors do any of the General Partner of RELP (the "Board of Directors") foregoing or the Board of Trust Managers from (x) 19 furnishing information any agreement to or entering into discussions or negotiations with, engage in any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreementforegoing.
Appears in 1 contract
Acquisition Proposals. Prior Except in the furtherance of the --------------------- transactions contemplated hereby, prior to the Effective TimeDate, RELP each of SPC and AIP each agree the Controlling Shareholders agrees that (i) that neither of them SPC, the Controlling Shareholders nor any of their Subsidiaries respective affiliates shall, and each of them SPC and the Controlling Shareholders shall direct and use its and his best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates and representatives his Representatives (including, without limitation, any investment banker, attorney or accountant retained by it and him or any of its Subsidiaries), as applicable, and his Affiliates) not to, directly or indirectly, initiate, solicit or encourage, directly or indirectly, encourage any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) ), with respect to a any merger, acquisition, tender offerconsolidation, exchange offershare exchange, consolidation business combination or similar other transaction involving, or any purchase which would result in, (A) the acquisition of all or any significant portion a majority of the assets or any outstanding equity securities of SPC, (B) the issuance by such party, in a single transaction or any debt a series of related transactions, of equity securities convertible into which would represent, following issuance, a majority of the outstanding equity securitiessecurities of SPC, or (C) of, the acquisition of a majority of the consolidated assets of such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") ), or engage in any -------------------- negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person or entity relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) that it will shall immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing foregoing, and each will it shall take the necessary steps to inform the individuals or entities referred to above any such parties of the obligations undertaken in this Section 7.18.3; and (iii) that it will shall notify the other party DPRC immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") it or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreementhim.
Appears in 1 contract
Acquisition Proposals. Prior to Until the Effective TimeTime or earlier termination of this Agreement pursuant to Article IX and except as provided in Section 5.2, RELP and AIP each agree (i) that neither of them Parent nor the Company will, nor will they permit any of their Subsidiaries shallto, and each nor will they authorize or permit any officer, director or employee of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates and representatives (including, without limitation, or any investment banker, attorney attorney, accountant or accountant retained by it other advisor or representative of, Parent or the Company, respectively, or any of its Subsidiaries), as applicable, not their Subsidiaries to, initiate, solicit or encourage, directly or indirectly, (i) solicit, initiate or encourage the submission of any Acquisition Proposal or (ii) participate in any discussions or negotiations regarding, or furnish to any Person any information in respect of, or take any other action to facilitate, any Acquisition Proposal or any inquiries or the making or implementation of any proposal that constitutes, or offer (including, without limitationmay reasonably be expected to lead to, any Acquisition Proposal. “Acquisition Proposal” means an inquiry, offer or proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or regarding any purchase of all or any significant portion of the assets or any equity securities following (or any debt securities convertible into equity securities) of, such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement Agreement) involving Parent, Merger Sub, the Company or any of their respective Subsidiaries: (w) any such proposal merger, consolidation, share exchange, recapitalization, business combination or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposalother similar transaction; (iix) that it will immediately cease any sale, lease, exchange, mortgage, pledge, transfer or other disposition of all or substantially all the assets of such party and cause its Subsidiaries, taken as a whole, in a single transaction or series of related transactions; (y) any tender offer or exchange offer for 20% or more of such party’s outstanding shares or the filing of a registration statement under the Securities Act in connection therewith; or (z) any public announcement of a proposal, plan or intention to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to do any of the foregoing and each will take the necessary steps or any agreement to inform the individuals or entities referred to above engage in any of the obligations undertaken in this Section 7.1; and (iii) that it will notify the other party immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreementforegoing.
Appears in 1 contract
Acquisition Proposals. Prior (a) From and after the date of this Agreement until the earlier to occur of the Effective TimeClosing or termination of this Agreement pursuant to its terms, RELP the Company will not, and AIP each agree the Company will instruct its directors, officers, and employees not to, directly or indirectly (i) that neither solicit, initiate, entertain or encourage submission of them nor any of their Subsidiaries shallAcquisition Proposal by any person, entity or group (other than Parent and each of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employeesaffiliates, agents, affiliates and representatives representatives) or (includingii) participate in any discussions or negotiations with, without limitationor disclose any non-public information concerning the Company to, or afford access to the properties, books or records of the Company, or otherwise assist or facilitate, or enter into any agreement or understanding with, any investment bankerperson, attorney entity or accountant retained group (other than Parent and its affiliates, agents, and representatives) in connection with any Acquisition Proposal with respect to the Company ((i) and (ii) are collectively referred to as “Alternative Efforts”). For purposes of this Agreement, an “Acquisition Proposal” means any proposal or offer relating to (1) any merger, consolidation, sale or license of all or substantially all of the assets or similar transactions involving the Company (other than licenses granted by it or any the Company in the ordinary course of its Subsidiariesbusiness), as applicable(2) dissolution of the Company, or (3) sales by the Company of any capital stock (including by way of a tender offer or an exchange offer) or rights thereto or debt instruments of the Company. The Company will promptly (x) notify Parent if, after the date of this Agreement, either the Company receives any written proposal or written inquiry or written request for information in connection with an Acquisition Proposal or potential Acquisition Proposal and (y) notify Parent of the significant terms and conditions of any such Acquisition Proposal. In addition, from and after the date of this Agreement until the Closing the Company will not, and will instruct its directors, officers, and employees not to, initiate, solicit or encourage, directly or indirectly, make or authorize any inquiries public statement, recommendation or the making or implementation solicitation in support of any proposal Acquisition Proposal made by any person, entity or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party or any of its Subsidiaries, group other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and (iii) that it will notify the other party immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this AgreementParent.
Appears in 1 contract
Acquisition Proposals. Prior to (a) Except as expressly permitted by this Section 5.5, promptly following the Effective Time, RELP and AIP each agree date of this Agreement (i) that neither of them nor any of their Subsidiaries shall, and each of them the Company shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with, and terminate any data room access (or other access to diligence) of, any Person and its directors, officers, Affiliates, employees, investment bankers, attorneys, accountants and other advisors, agents or representatives (collectively, “Representatives”) relating to an Acquisition Transaction and (ii) the Company will request that each Person (other than Parent and its Representatives) that has, prior to the date of this Agreement, executed a confidentiality agreement in connection with its consideration of acquiring the Company to, in accordance with the terms of such confidentiality agreement, promptly return or destroy all non-public information furnished to such Person by or on behalf of the Company or its Subsidiaries prior to the date of this Agreement. Except as expressly permitted by this Section 5.5, from the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VII, the Company and its Subsidiaries shall not, and the Company shall direct and cause its Representatives not to, directly or indirectly, (i) initiate, solicit, propose, or knowingly encourage, facilitate or assist, any inquiry or the making of any proposal or offer that constitutes, or is reasonably expected to lead to, an Acquisition Proposal, (ii) engage in, enter into, continue or otherwise participate in any discussions or negotiations with any parties conducted heretofore Person with respect to, or provide any non-public information or data concerning the Company or its Subsidiaries or afford access to the business, properties, assets, books, records or any personnel of the Company or any of its Subsidiaries (other than Parent, Merger Sub or any of their respective designees) relating to, an Acquisition Proposal, (iii) approve, endorse or recommend any proposal that constitutes, or is reasonably expected to lead to, an Acquisition Proposal or (iv) enter into any acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement relating to an Acquisition Proposal (an “Alternative Acquisition Agreement”).
(b) Notwithstanding anything to the contrary contained herein, from the date of this Agreement until the Company’s receipt of the Requisite Company Vote, if the Company receives a bona fide unsolicited Acquisition Proposal from any Person that was not received as a result of a breach of Section 5.5(a), the Company and its Representatives may contact such Person to clarify the terms and conditions thereof and (i) the Company and its Representatives may provide information (including any non-public information) regarding, and afford access to the business, properties, assets, books, records and personnel of, the Company and its Subsidiaries to such Person pursuant to an executed confidentiality agreement containing terms as to confidentiality that are no less favorable to the Company in the aggregate than those contained in the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”); provided that the Company shall (x) promptly (but in any event within 24 hours) notify Parent of the receipt of any
(c) Except as set forth in this Section 5.5(c), following the date of this Agreement the Company Board shall not (i) change, withhold, withdraw, qualify, amend or modify (or publicly propose or resolve to change, withhold, withdraw, qualify, amend or modify), in a manner adverse to Parent or Merger Sub, the Company Recommendation, (ii) fail to include the Company Recommendation in the Proxy Statement, (iii) approve or recommend, or publicly propose to approve or recommend to the Company Shareholders, an Acquisition Proposal, (iv) fail to publicly reaffirm the Company Recommendation within 10 Business Days of the occurrence of a material event or development and after Parent so requests in writing (or, if the Company Shareholders Meeting is scheduled to be held within 10 Business Days, then within one Business Day after Parent so requests in writing), or (v) if a tender offer or exchange offer for shares of Capital Stock of the Company that constitutes an Acquisition Proposal is commenced, fail to recommend against acceptance of such tender offer or exchange offer by the Company Shareholders (including, for these purposes, by disclosing that it is taking no position with respect to the acceptance of such tender offer or exchange offer by its shareholders, which shall constitute a failure to recommend against acceptance of such tender offer or exchange offer, provided that a customary “stop, look and listen” communication by the Company Board pursuant to Rule 14d-9(f) promulgated under the Exchange Act shall not be prohibited), within ten (10) Business Days after commencement thereof (any of the foregoing and each will take foregoing, a “Change of Recommendation”), or authorize, adopt, approve or propose to authorize, adopt or approve, an Acquisition Proposal, or cause or permit the necessary steps Company to inform enter into any Alternative Acquisition Agreement. Notwithstanding anything to the individuals or entities referred to above of the obligations undertaken contrary set forth in this Section 7.1; Agreement, the Company Board may (A) effect a Change of Recommendation if the Company Board determines in good faith (after consultation with its outside legal counsel) that, (x) as a result of a development or Effect that occurs or arises after the execution and delivery of this Agreement (other than a Superior Proposal or Effect that otherwise relates to an Acquisition Proposal) that was not known to, or reasonably foreseeable by, the Company Board prior to the execution and delivery of this Agreement (an “Intervening Event”), and (iiiy) failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law or (B) if the Company receives a bona fide Acquisition Proposal that it will notify the other party immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought Company Board determines in good faith (after consultation with its financial advisor and outside legal counsel) constitutes a Superior Proposal and that the failure to do so would reasonably be expected to be initiated or continued withinconsistent with its fiduciary duties pursuant to applicable Law, itterminate this Agreement pursuant to Section 7.4(a) and enter into, the Alternative Acquisition Agreement associated with such Superior Proposal; provided, however, that nothing contained that:
(i) the Company Board may only take the actions described in this Section 7.1 the foregoing clause (A) if: (1) the Company shall prohibit the Board of Directors have provided prior written notice to Parent of the General Partner Company Board’s intention to take such actions at least three (3) Business Days in advance of RELP taking such action, which notice shall describe the Intervening Event in reasonable detail; (2) after providing such notice and prior to taking such actions, the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, ifCompany shall have, and only shall have caused its Representatives to, negotiate with Parent in good faith (to the extent thatParent desires to negotiate) during such three (3) Business Day period, to make such adjustments in the terms and conditions of this Agreement that would cause the Company Board to no longer believe that it would be inconsistent with the directors’ fiduciary duties under applicable Law not to effect the Change of Recommendation, and by 5:00 PM Eastern Time on the last Business Day of such three (A3) Business Day and the Company Board shall have determined in good faith after consultation with outside counsel, that it would continue to reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law not to effect the Change of Recommendation, if such changes offered in writing by Parent were given effect; and (ii) the Company Board may only take the actions described in the foregoing clause (B) if: (1) the Company shall have provided prior written notice to Parent of Directors the Company Board’s intention to take such actions at least three (3) Business Days in advance of taking such action (or Board two (2) Business Days in the case of Trust Managersany material modification of a Superior Proposal that is the subject of a prior notification under this clause), which notice shall specify, as applicable, determines the material terms of the Acquisition Proposal received by the Company that could reasonably result in a Superior Proposal, including a copy of the most current version of the relevant proposed transaction agreements with, and the identity of, the party making the Acquisition Proposal and other material documents (including any financing commitments with respect to such Acquisition Proposal); (2) after providing such notice and prior to taking such actions, the Company shall have, and shall have caused its Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) during such three (3) Business Day or two (2) Business Day period, as the case may be, to make such adjustments in the terms and conditions of this Agreement as would cause the Company Board to no longer believe that such action is required for it would reasonably be expected to comply be inconsistent with its the directors’ fiduciary duties under applicable Law not to limited partners or shareholders, as applicable, imposed by law as advised by counsel, effect the Change of Recommendation; (B3) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party Company Board shall have considered in good faith any changes to this Agreement to or other arrangements that may be offered in writing by Parent by 5:00 PM Eastern Time on the effect that it is furnishing information tolast Business Day of such three (3) Business Day or two (2) Business Day period, or entering into discussions with, such person or entityas the case may be, and (C) subject to any confidentiality agreement with such person or entity (which such party shall have determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managersfaith, as applicableafter consultation with outside counsel and its financial advisors, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall that (i) permit any party Parent has not made an offer that is at least as favorable, taken as a whole, to terminate this Agreement (except the Company Shareholders as specifically provided in Article IX hereof), such Acquisition Proposal and (ii) permit any party to enter into any agreement with respect to an the bona fide Acquisition Proposal during received by the term of this Agreement (it being agreed that during the term of this AgreementCompany would continue to constitute a Superior Proposal, no party shall enter into any agreement with any person that provides forin each case, or if such changes offered in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreement.writing by Parent were given effect; and
Appears in 1 contract
Sources: Merger Agreement (Bravo Brio Restaurant Group, Inc.)
Acquisition Proposals. Prior (a) The Company shall not, and shall cause its Subsidiaries not to (whether directly or indirectly through Affiliates, directors, officers, employees, attorneys, investment bankers, representatives, advisors or other intermediaries (“Representatives”)) nor shall (directly or indirectly) the Effective Time, RELP and AIP each agree Company authorize or permit any of its or its Subsidiaries’ Representatives to: (i) that neither of them nor any of their Subsidiaries shall, and each of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates and representatives (including, without limitation, any investment banker, attorney directly or accountant retained by it or any of its Subsidiaries), as applicable, not toindirectly, initiate, solicit or encourage, directly or indirectly, knowingly encourage any inquiries with respect to, or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal", (ii) or engage in any negotiations or discussions concerning, or provide access to its properties, books and records or any confidential information or data to, or have any discussions with, any person Person relating to an Acquisition Proposal, (iii) approve, endorse or otherwise facilitate recommend, or propose publicly to approve, endorse or recommend, any effort or attempt to make or implement an Acquisition Proposal; , (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 or (v) agree to resolve to take, or take, any of the actions prohibited by the foregoing clauses (i), (ii), (iii) and (iv); provided, however, it is understood and agreed that it will any determination or action by the Board permitted under Section 6.5(b) or Section 6.5(e) shall not be deemed to be a breach or violation of this Section 6.5(a). From and after the date hereof, the Company shall, and shall cause each of its Subsidiaries and shall instruct its and their Representatives to, (A) immediately cease any and cause to be terminated any all existing activities, solicitations, discussions or negotiations with any Person (other than the parties hereto) conducted heretofore with respect to any of the foregoing foregoing, (B) take such action as is necessary to enforce any confidentiality provisions or provisions of similar effect to which the Company or any of its Subsidiaries is a party or of which the Company or any of its Subsidiaries is a beneficiary and each will (C) not terminate, waive, amend, release or modify any provision of any standstill agreement (including any standstill provision contained in any confidentiality or other agreement) to which the Company or any of its Affiliates or Representatives is a party, unless, solely with respect to this clause (C), the Board has determined in good faith, after consultation with its financial advisors and outside legal counsel, that failure to take such action would reasonably be expected to be inconsistent with the necessary steps to inform the individuals or entities referred to above fiduciary duties of the obligations undertaken Board under applicable Law. The Company shall promptly after the date of this Agreement instruct each Person which has heretofore executed a confidentiality agreement relating to any Acquisition Proposal with or for the benefit of the Company to promptly return or destroy all confidential information, documents and materials relating to an Acquisition Proposal or to the Company, its Subsidiaries or its businesses, operations or affairs heretofore furnished by or on behalf of the Company or any of its Representatives to such Person or any of its Representatives in accordance with the terms of any confidentiality agreement with such Person and terminate any “data room” or similar access of such Persons and their Representatives.
(b) Notwithstanding anything to the contrary in Section 6.5(a), nothing contained in this Agreement shall prevent the Company or the Board from (i) taking and disclosing to the stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or complying with Item 1012(a) of Regulation M-A promulgated under the Exchange Act; (ii) complying with Rule 14d-9 promulgated under the Exchange Act, including a “stop, look and listen” communication by the Board to the Stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or any substantially similar communication), or from making any disclosure if the Board determines in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to make such disclosure would reasonably be expected to be inconsistent with the fiduciary duties of the Board under applicable Law, (provided, that neither the Company nor the Board may recommend any Acquisition Proposal unless permitted by Section 6.5(e) and the Company may not fail to make, or withdraw, modify or change in a manner adverse to Parent all or any portion of, the Recommendation unless in compliance with Section 6.5(f)); (iii) prior to obtaining the Company Requisite Vote, providing access to its properties, books and records and providing information or data in response to a request therefor by a Person or group who has made a bona fide unsolicited written Acquisition Proposal after the date hereof (it being understood that such Person or group may have engaged in discussions with the Company prior to the date hereof and may submit an unsolicited Acquisition Proposal following the date hereof), not resulting from a breach of Section 6.5(a), if the Board receives from the Person so requesting such information an executed confidentiality agreement (a copy of which shall be provided to Parent) on terms that are no less favorable to the Company than those contained in the Confidentiality Agreement (it being understood that such confidentiality agreement must contain a standstill provision) 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 substantially concurrent with the time it is provided to such Person; or (iv) prior to obtaining the Company Requisite Vote, contacting and engaging in any negotiations or discussions with any Person or group and their respective Representatives who has made an unsolicited Acquisition Proposal after the date hereof (it being understood that such Person or group may have engaged in discussions with the Company prior to the date hereof and may submit an unsolicited Acquisition Proposal following the date hereof), not resulting from a breach of Section 6.5(a), if, and only if, prior to taking such action as set forth in the foregoing clauses (iii) and (iv), the Board shall have determined in good faith, after consultation with its outside legal counsel and financial advisors (A) that failure to take such action would reasonably be expected to be inconsistent with the fiduciary duties of the Board under applicable Law and (B) that, such Acquisition Proposal, constitutes, or could reasonably be expected to result in, a Superior Proposal.
(c) The Company shall notify Parent promptly (but in any event within 24 hours) after receipt or occurrence of any Acquisition Proposal or the determination of the existence of an Intervening Event, as applicable, of (i) the material terms and conditions of any such Acquisition Proposal (including the identity of the Person making any such Acquisition Proposal and if applicable, providing copies of any written inquiries, requests, proposals or offers and any proposed agreements relating thereto, which may be redacted to the extent necessary to protect confidential information of the Person making such Acquisition Proposal) or the Intervening Event, as applicable and (ii) any request for non-public information or to engage in negotiations or discussions that would reasonably be expected to lead to an Acquisition Proposal. The Company shall not, and shall cause each of its Subsidiaries not to, terminate, waive, amend or modify any provision of any existing standstill or confidentiality agreement to which it or any of its Subsidiaries is a party, and the Company shall, and shall cause its Subsidiaries to, enforce the provisions of any such agreement; provided, however, that, the Company may waive any such provision in response to an Acquisition Proposal to the Board made under circumstances in which the Company is permitted under this Section 6.5 to participate in discussions regarding an Acquisition Proposal, but only to the extent necessary to allow it to respond to such Acquisition Proposal as permitted under this Section 6.5. The Company shall keep Parent reasonably informed of the status and material details (including any amendments or proposed amendments) of any such Acquisition Proposal or Intervening Event, as applicable, and keep Parent reasonably informed as to the material details of all developments, discussions or negotiations regarding the financial and any other material terms of the Acquisition Proposal or request (including by providing, within 24 hours after receipt thereof, copies of all drafts of proposed agreements relating thereto which may be redacted to the extent necessary to protect confidential information of the Person making such Acquisition Proposal).
(d) Except as permitted by Section 6.5(e), the Board will not (i) withhold, withdraw or modify, or propose to withhold, withdraw or modify, in any manner adverse to Parent or each Merger Sub, the Recommendation, (ii) approve, recommend, endorse or otherwise declare advisable, or publicly propose to approve, recommend, endorse or otherwise declare advisable, an Acquisition Proposal, (iii) fail to include the Recommendation in the Proxy Statement, (iv) fail to publicly recommend against any Acquisition Proposal (including, for these purposes, by taking no position with respect to the acceptance of such Acquisition Proposal by the Company’s stockholders, which shall constitute a failure to recommend against such Acquisition Proposal), or to publicly re-affirm the Recommendation, in each case, within five (5) Business Days following an Acquisition Proposal that has been publicly announced (or such fewer number of days as remain prior to the Stockholders Meeting, as it may be adjourned or postponed in accordance with this Agreement) (any of the actions described in the foregoing clauses (i), (ii), (iii) and (iv), an “Adverse Recommendation Change”) or (v) approve, recommend, declare advisable or enter into any definitive agreement relating to an Acquisition Proposal (excluding, for the avoidance of doubt, a confidentiality agreement as contemplated by Section 6.5(b)).
(e) Notwithstanding anything in this Section 7.1; 6.5 to the contrary, at any time prior to obtaining the Company Requisite Vote:
(i) if the Board determines in good faith, after consultation with its financial advisors and outside legal counsel, in response to a bona fide written Acquisition Proposal that did not result from a material breach of this Section 6.5, that (A) such proposal is a Superior Proposal and (iiiB) that it will notify the other party immediately if any failure to take such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought action would reasonably be expected to be initiated inconsistent with the Board’s fiduciary duties under applicable Law, the Company or continued with, itthe Board may effect such Adverse Recommendation Change and terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal; provided, however, that nothing contained in the Company shall not effect an Adverse Recommendation Change or terminate this Section 7.1 Agreement pursuant to this sentence, and any purported termination pursuant to this sentence shall prohibit the Board be void and of Directors of the General Partner of RELP (the "Board of Directors") no force or the Board of Trust Managers from effect, unless (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, the Company complies with the provisions of Section 6.5(c) and only to the extent that, (Af) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) all respects prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to terminating this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) concurrently with such termination, the Company pays to Parent the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter Termination Fee and enters into any a definitive agreement with respect to such Superior Proposal; or
(ii) other than in connection with an Acquisition Proposal that constitutes a Superior Proposal as provided in clause (i) above, the Board may only effect an Adverse Recommendation Change in response to any Intervening Event if the Board determines in good faith, after consultation with its financial advisors and outside legal counsel, that the failure to take such action is inconsistent with the Board’s fiduciary duties under applicable Law; provided, however, the Company shall not effect an Adverse Recommendation Change pursuant to this sentence unless the Company complies with the provisions of Section 6.5(c) and (f) in all respects.
(f) Prior to the Company taking any action permitted under (i) Section 6.5(e)(ii), the Company shall provide Parent with three (3) Business Days’ prior written notice advising Parent it intends to effect a Adverse Recommendation Change and specifying, in reasonable detail, the reasons therefor and, during such three (3) Business Day period, if requested by Parent, the term Company engages in good faith negotiations with Parent to amend the terms of this Agreement in a manner that obviates the need to effect a Adverse Recommendation Change or (ii) Section 6.5(e)(i), the Company shall provide Parent with three (3) 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 an additional two (2) Business Day period) advising Parent that the Board intends to take such action, and specifying the material terms and conditions of the Superior Proposal and that the Company shall, during such three (3) Business Day period (or subsequent two (2) Business Day period), negotiate in good faith with Parent to make such adjustments to the term terms and conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal.
(g) For purposes of this Agreement, no party the following terms shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreement.have the meanings assigned below:
Appears in 1 contract
Sources: Merger Agreement (Diligent Corp)
Acquisition Proposals. Prior During the Interim Period, each of Embraer, EAH and the Company shall not, and shall cause each of its respective Subsidiaries to the Effective Time, RELP and AIP each agree (i) that neither of them nor any of their Subsidiaries shallnot, and each of them Embraer, EAH and the Company shall direct instruct and use its their respective reasonable best efforts to cause its their respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicableRepresentatives acting on their behalf, not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of : (a) make any proposal or offer that constitutes an Alternative Proposal, (includingb) initiate, without limitationsolicit, engage in or continue any proposal discussions, negotiations or offer to its shareholders) transactions with any Person with respect to, or provide any non-public information or data concerning the UAM Business, the Transferred Assets, the Company or the Brazilian Subsidiary to a mergerany Person relating to, acquisitionor cooperate in any way that would otherwise reasonably be expected to lead to, tender offeran Alternative Proposal or afford to any Person access to the business, exchange offerproperties, consolidation assets or personnel of the UAM Business (including the Transferred Assets), the Company or the Brazilian Subsidiary in connection with an Alternative Proposal, (c) execute or enter into any acquisition agreement, business combination agreement, merger agreement or similar transaction involvingdefinitive agreement, or any purchase letter of all intent, memorandum of understanding or agreement in principle, or any significant portion other agreement relating to an Alternative Proposal, (d) grant any waiver, amendment or release under any confidentiality agreement or the anti-takeover laws of the assets any state, (e) encourage, facilitate or respond to any such inquiries, proposals, discussions, or negotiations or any equity securities effort or attempt by any Person to make an Alternative Proposal, (f) commence, continue or renew any debt securities convertible due diligence investigation regarding an Alternative Proposal; (g) approve, endorse or recommend, or propose to approve, endorse or recommend, an Alternative Proposal; or (h) resolve, agree or otherwise commit to enter into equity securities) of, such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerningof the foregoing, or provide any confidential information or data in each case other than with Zanite and its respective Representatives. From and after the date hereof, each of Embraer, EAH and the Company shall, and shall instruct their respective officers and directors to, or have any discussions withand each of Embraer, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) that it will immediately cease EAH and the Company shall instruct and cause to be terminated any existing activitiestheir respective Representatives acting on their behalf, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing their respective Subsidiaries and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and their respective Representatives (iiiacting on their behalf) that it will notify the other party immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent thatto, (A) the Board of Directors or Board of Trust Managersimmediately cease and terminate all discussions and negotiations with, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, and (B) prior request the prompt return of any due diligence materials, and immediately terminate access to furnishing such information any data room, provided to, in each case of clauses (A) and (B), any Person with respect to, or entering into discussions which may reasonably be expected to give rise to or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitatesresult in, an Acquisition Alternative Proposal (other than a confidentiality agreement in customary formwith Zanite)), or (iii) affect any other obligation of any party under this Agreement.
Appears in 1 contract
Sources: Business Combination Agreement (Zanite Acquisition Corp.)
Acquisition Proposals. Prior to the Effective Time, RELP (a) ICEWEB and AIP each agree (i) that neither of them nor any of their Subsidiaries shallits subsidiaries shall not, and each of them shall direct and use its best efforts to cause its their respective directors, officers, General Partner, limited partners, Trust Managers, employees, agentsfinancial advisors, affiliates legal counsel, accountants, and other agents and representatives (includingfor purposes of this Section 7.2 only, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), being referred to as applicable, "affiliates") not to, initiate, solicit solicit, or encourage, directly or indirectly, or take any other action to facilitate any inquiries or the making or implementation of any proposal with respect to, engage or offer (includingparticipate in negotiations concerning, without limitationprovide any nonpublic information or data to, or have any discussions with any person other than DSSC relating to, any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer (including a self-tender offer), exchange offer, consolidation merger, consolidation, acquisition of beneficial ownership of or similar transaction involving, the right to vote securities of such entity or any of its subsidiaries, dissolution, business combination, purchase of all or any significant portion of the assets or any equity securities (division of, or any debt securities convertible into equity securities) ofinterest in, such party entity or any of its Subsidiariessubsidiary, or similar transaction other than the Merger (such proposals, announcements, or transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition ProposalProposals"). ICEWEB shall promptly notify the others orally and in writing if any such Acquisition Proposal (including the terms thereof and identity of the persons making such proposals) is received and furnish to the other parties hereto a copy of any written proposal.
(b) DSSC and its subsidiaries shall not, and shall use its best efforts to cause their respective directors, officers, employees, financial advisors, legal counsel, accountants, and other agents and representatives (for purposes of this Section 7.2 only, being referred to as "affiliates") not to, initiate, solicit, or encourage, directly or indirectly, or take any other action to facilitate any inquiries or the making of any proposal with respect to, engage or participate in any negotiations concerning, or provide any confidential nonpublic information or data to, or have any discussions withwith any person other than DSSC relating to, any person relating acquisition, tender offer (including a self-tender offer), exchange offer, merger, consolidation, acquisition of beneficial ownership of or the right to an Acquisition Proposalvote securities of such entity or any of its subsidiaries, dissolution, business combination, purchase of all or any significant portion of the assets or any division of, or otherwise facilitate any effort equity interest in, such entity or attempt to make any subsidiary, or implement an Acquisition Proposal; similar transaction other than the Merger (ii) that it will immediately cease and cause to be terminated any existing activitiessuch proposals, discussions announcements, or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities transactions being referred to above of the obligations undertaken in this Section 7.1; and (iii) that it will as "Acquisition Proposals"). DSSC shall promptly notify the other party immediately others orally and in writing if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit Acquisition Proposal (including the Board of Directors terms thereof and identity of the General Partner of RELP (the "Board of Directors"persons making such proposals) or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, is received and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice furnish to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) parties hereto a copy of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreementwritten proposal.
Appears in 1 contract
Acquisition Proposals. Prior to (a) None of the Effective Time, RELP and AIP each agree (i) that neither of them nor any of their Subsidiaries shall, and each of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates and representatives (including, without limitation, any investment banker, attorney or accountant retained by it Company or any of its SubsidiariesSubsidiaries shall (whether directly or indirectly through Affiliates, directors, officers, representatives or other intermediaries), as applicable, not to, initiate, solicit or encourage, nor shall (directly or indirectly, any inquiries ) the Company authorize or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party or permit any of its Subsidiariesor their officers, directors, representatives or other intermediaries or Subsidiaries to, (i) solicit, initiate or take any action to facilitate or encourage the submission of inquiries, proposals or offers from any Person (other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"Parent) or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an any Acquisition Proposal, or otherwise facilitate agree to or endorse any effort or attempt to make or implement an Acquisition Proposal; (ii) that enter into any agreement to (x) facilitate or consummate, any Acquisition Proposal, (y) approve or endorse any Acquisition Proposal or (z) in connection with any Acquisition Proposal, require it will to abandon, terminate or fail to consummate the Merger; (iii) enter into or participate in any discussions or negotiations in connection with any Acquisition Proposal or inquiry with respect to any Acquisition Proposal, or furnish to any Person any information with respect to its business, properties or assets in connection with any Acquisition Proposal or inquiry with respect to any Acquisition Proposal; or (iv) agree to resolve or take any of the actions prohibited by clause (i), (ii) or (iii) of 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 conducted heretofore with respect to any of the foregoing and each will take shall demand the necessary steps to inform the individuals return or entities referred to above of the obligations undertaken in this Section 7.1; and (iii) that it will notify the other party immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) destruction of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically information previously provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during such activities, discussion, or negotiations. For purposes of this Section 7.5, the term "Person" means any person, corporation, entity or "group," as defined in Section 13(d) of this Agreement (it being agreed that during the term of this AgreementExchange Act, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), Parent or (iii) affect any other obligation Subsidiaries of any party under this AgreementParent.
Appears in 1 contract
Acquisition Proposals. Prior Pursuant to the Effective TimeMerger Agreement, RELP and AIP each agree (i) that neither none of them nor the Company, its subsidiaries, or any of their Subsidiaries the respective officers and directors of the Company or its subsidiaries, shall, and each of them the Company shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates agents and representatives (including, without limitation, including any investment banker, attorney or accountant retained by it the Company or any of its Subsidiaries), as applicable, subsidiaries) not to, initiate, solicit take or encouragecause, directly or indirectly, any of the following actions with any party other than Numico, the Purchaser or their respective designees: (i) directly or indirectly solicit, encourage, initiate, participate in or otherwise facilitate (including by way of furnishing information) any negotiations, inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) discussions with respect to a any offer, indication or proposal to acquire all or more than 15% of the Company's business, assets or capital shares whether by merger, acquisitionconsolidation, other business combination, purchase of assets, reorganization, tender offer, or exchange offer, consolidation offer or similar transaction involving, or any purchase of all or any significant portion otherwise (each of the assets or any equity securities (or any debt securities convertible into equity securities) offoregoing, such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage (ii) disclose, in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to connection with an Acquisition Proposal, any information or otherwise facilitate any effort provide access to its properties, books or attempt to make or implement an Acquisition Proposal; (ii) records. The Company also agreed that it will immediately cease and cause to be terminated any previously existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each foregoing. The Company agreed that it will take the necessary steps to promptly inform the individuals or entities referred to above in the first sentence of this paragraph of such obligations that it has undertaken. The Company also agreed to promptly request any person which may have executed a confidentiality agreement in connection with its consideration of acquiring the Company and/or any of its subsidiaries to return or destroy all confidential information furnished to such person by or on behalf of the obligations undertaken Company. Notwithstanding anything to the contrary referred to in this Section 7.1; the previous paragraph, the Merger Agreement provides that prior to the consummation of the Offer the Company may participate in discussions or negotiations with, and furnish non-public information and afford access to the properties, books, records, officers, employees and representatives of the Company to, any person, entity or group if such person, entity or group has delivered to the Company, prior to the consummation of the Offer, and in writing, an Acquisition Proposal which is not subject to any financing contingency and which the Board in its good faith judgment (iiiafter consultation with its independent financial advisor) determines if consummated would be more favorable, from a financial point of view, to the Company's stockholders than the transactions contemplated by the Merger Agreement and with respect to which the Board receives advice of its outside legal counsel that the Board would breach its fiduciary duties if it did not accept the Acquisition Proposal (a "Superior Proposal"). Pursuant to the Merger Agreement, in the event the Company receives a Superior Proposal the Board could execute and enter into an agreement relating to such Superior Proposal and recommend such Superior Proposal to its stockholders, if the Board determines (after consultation with its independent financial advisor and outside legal counsel) that its fiduciary duties require it will notify to do so; in such case, the other party immediately if any such inquiries Board may withdraw, modify or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, itrefrain from making its recommendation of the Offer and the Merger; provided, however, that nothing contained the Company (i) shall have promptly notified Numico, and in this Section 7.1 shall prohibit the Board any event within 24 hours, of Directors receipt of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that request for any such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information toinformation, or entering into discussions initiation or recommencement of any such negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, the Company or any of its subsidiaries, indicating, in connection with such notice, the name of such person making the Acquisition Proposal or entitytaking such action and, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for reasonable detail, the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) significant terms of any such discussions or negotiations; Acquisition Proposal and (y) including with such notice any documentation relating to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an such Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party shall provide Numico at least 48 hours prior written notice of the Company's intention to execute or enter into any an agreement with respect relating to an Acquisition such Superior Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or and (iii) affect any other obligation may only terminate the Merger Agreement by written notice to Numico provided no sooner than 48 hours after Numico's receipt of any party under this Agreementa copy of such Superior Proposal (or a detailed description of the significant terms and conditions thereof).
Appears in 1 contract
Acquisition Proposals. Prior to the Effective Time, RELP and AIP each agree Pac Rim agrees --------------------- (ia) that neither of them Pac Rim nor any of its Subsidiaries nor its or their Subsidiaries shall, and each of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managersdirectors, employees, agents, affiliates agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), ) shall (except to the extent necessary to comply with fiduciary duties to stockholders as applicable, not to, provided in this Section 7.1) initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholdersstockholders) with respect to a merger, acquisition, consolidation, tender offer, exchange offer, consolidation business combination or similar transaction involving, or any purchase of all or any significant portion more than forty percent (40%) of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party Pac Rim or any of its Subsidiaries, other than the transactions contemplated by this Agreement Subsidiaries (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (iib) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the any individuals or entities referred to above with whom an Acquisition Proposal is currently being discussed or hereinafter making an Acquisition Proposal of the obligations undertaken in this Section 7.1; and (iiic) that it will notify the other party Parent immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, itwith Pac Rim or its Subsidiaries; provided, however, that nothing contained in this Section 7.1 shall shall, prior to approval of the transaction described herein by the holders of Pac Rim Common Stock, prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers Pac Rim from (xi) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide written Acquisition Proposal, if, and only to the extent that, (A) such Acquisition Proposal is on terms that the Board of Directors or of Pac Rim determines, with the assistance of its financial advisors, represents a financially superior transaction to the holders of Pac Rim Common Stock compared with the Merger, (B) such Acquisition Proposal is not conditioned upon the acquiror obtaining financing, (C) the Board of Trust Managers, as applicable, Directors of Pac Rim determines in good faith faith, based as to legal matters on the written opinion of outside legal counsel, that such action is required for it the Board of Directors to comply with its fiduciary duties to limited partners or shareholders, as applicable, stockholders imposed by law as advised by counsellaw, (BD) two (2) business days prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party Pac Rim provides written notice to the other party to this Agreement Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and furnishes Parent with the terms of and a copy of such Acquisition Proposal and (CE) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managersthereafter, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party Pac Rim keeps the other party to this Agreement Parent informed of the status (but not and the terms) of any such discussions or negotiations; and (yii) to the extent applicable, complying with Rule 14e-2 14e-2(a) promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (ix) permit any party to terminate this Agreement (except as specifically provided in Article IX 9 hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iiiz) affect any other obligation of any party under this Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Pac Rim Holding Corp)
Acquisition Proposals. Prior to the Effective TimeThe Company will not, RELP and AIP each agree (i) that neither of them nor will not permit or cause any of their its Subsidiaries shall, and each of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of the officers and directors of it or its Subsidiaries to, and shall direct its and its Subsidiaries), as applicable, ' Representatives not to, initiate, solicit or encourage, directly or indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisitionreorganization, tender offer, exchange offershare exchange, consolidation or similar transaction involving, or any purchase of all 15% or any significant portion more of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party the Company or any of its Subsidiaries, other than the transactions contemplated by this Agreement Subsidiaries (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company will not, and will not permit or cause any of its Subsidiaries or any of the officers and directors of it or its Subsidiaries to and shall direct its and its Subsidiaries' Representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person Person relating to an Acquisition Proposal, whether made before or after the date of this Agreement, or otherwise facilitate any effort or attempt to make or implement an Acquisition ProposalProposal (including, without limitation, by means of an amendment to the Rights Agreement); provided, however, that nothing contained in this Agreement shall prevent the Company or its board of directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal or (ii) at any time prior to the approval of the Merger by the Company Common Stock Requisite Vote (A) providing information in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the board of directors receives from the Person so requesting such information an executed confidentiality agreement on terms substantially equivalent to those contained in the Confidentiality Agreement; (B) engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal; or (C) recommending such an Acquisition Proposal to the stockholders of the Company, if and only to the extent that, (i) in each such case referred to in clause (A), (B) or (C) above, the board of directors of the Company determines in good faith after consultation with outside legal counsel that it such action is necessary in order for its directors to comply with their respective fiduciary duties under applicable Law and (ii) in each case referred to in clause (B) or (C) above, the board of directors of the Company determines in good faith (after consultation with its financial advisor) that such Acquisition Proposal, if accepted, is reasonably likely to be consummated, 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 more favorable transaction than the transaction contemplated by this Agreement, taking into account the long-term prospects and interests of the Company and its stockholders (any such more favorable Acquisition Proposal being referred to in this Agreement as a "Superior Proposal"). The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each foregoing. The Company agrees that it will take the necessary steps to promptly inform the individuals or entities referred to above in the first sentence hereof of the obligations undertaken in this Section 7.1; 6.2 and (iii) that it in the Confidentiality Agreement. The Company will notify the other party Parent immediately if any such inquiries inquiries, proposals or proposals offers are received by, any such information is requested from, or any such discussions or negotiations or discussions are sought to be initiated or continued with, it; providedany of its Representatives indicating, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement connection with such person notice, the name of such Person and the material terms and conditions of any proposals or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managersoffers and thereafter shall keep Parent informed, as applicableon a current basis, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) and terms of any such discussions proposals or negotiations; offers and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposalstatus of any such negotiations or discussions. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed The Company also will promptly request each Person that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than has heretofore executed a confidentiality agreement in customary form)), connection with its consideration of an Acquisition Proposal to return all confidential information heretofore furnished to such Person by or (iii) affect on behalf of it or any other obligation of any party under this Agreementits Subsidiaries.
Appears in 1 contract
Sources: Merger Agreement (American Bankers Insurance Group Inc)
Acquisition Proposals. Prior From the date hereof until the Closing Date or, if earlier, the termination of this Agreement in accordance with Article X, other than as contemplated by this Agreement, any of the Ancillary Agreements or the Transactions (including the PIPE Investment or the Pre-Closing Reorganization), the Target Companies and their respective Subsidiaries shall not, and each Target Company shall instruct its respective Representatives not to, (a) make any proposal or offer that constitutes an Alternative Proposal, (b) initiate, solicit or engage in any negotiations with any Person with respect to, or provide any non-public information or data concerning any Target Company or any of its Subsidiaries to any Person relating to, an Alternative Proposal or afford to any Person access to the business, properties, assets or personnel of any Target Company or any of its Subsidiaries in connection with an Alternative Proposal, (c) enter into any acquisition agreement, merger agreement or similar definitive agreement, or any letter of intent, memorandum of understanding or agreement in principle, or any other agreement, relating to an Alternative Proposal, (d) otherwise knowingly encourage or facilitate any such inquiries, proposals, discussions, or negotiations or any effort or attempt by any Person to make an Alternative Proposal, (e) approve, endorse or recommend, or propose to approve, endorse or recommend, an Alternative Proposal, or (f) agree or otherwise commit to enter into or engage in any of the foregoing, in each case, other than with SPAC, Merger Sub 1 or any of their respective Representatives or, following the SPAC Merger Effective Time, RELP Flexjet or its Representatives. From and AIP each agree (i) that neither after the date hereof until the Closing Date or, if earlier, the termination of them nor any of this Agreement in accordance with Article X, the Target Companies and their respective Subsidiaries shall, and shall instruct their respective Representatives to, immediately cease and terminate all discussions and negotiations with any Persons that may be ongoing with respect to an Alternative Proposal (other than SPAC, Merger Sub 1, or any of their respective Representatives or, following the SPAC Merger, Flexjet). From and after the date hereof until the Closing Date or, if earlier, the termination of this Agreement in accordance with Article X, each Target Company will promptly, and in any event within two Business Days of them shall direct and use its best efforts to cause its respective officersreceipt, General Partner, limited partners, Trust Managers, employees, agents, affiliates and representatives (including, without limitation, any investment banker, attorney or accountant retained by notify SPAC if it or any of its Subsidiaries)controlled Affiliates, as applicableor, not toto the Knowledge of Epic, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement or its (any such proposal i) non-controlled Affiliates or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) that it will immediately cease and cause to be terminated Affiliates’ respective Representatives, receives any existing activitiesproposal, discussions offer or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and (iii) that it will notify the other party immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement submission with respect to an Acquisition Alternative Proposal during after the term of this Agreement (it being agreed that during the term date of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreement.
Appears in 1 contract
Sources: Business Combination Agreement (Horizon Acquisition Corp II)
Acquisition Proposals. Prior to Neither the Effective TimeCompany nor the Unitholders will, RELP and AIP each agree (i) that neither nor will either of them nor authorize or permit any of their Subsidiaries shallofficer, and each of them shall direct and use its best efforts to cause its respective officersdirector, General Partneremployee, limited partners, Trust Managers, employees, agents, affiliates and representatives (including, without limitation, consultant or contractor or any investment banker, attorney attorney, accountant or accountant retained by it other agent or any Representative of its Subsidiaries), as applicable, not the Company or the Unitholders acting on either of their behalf to, initiate, solicit or encourage, directly or indirectly, (a) solicit, initiate or intentionally encourage the submission of any Acquisition Proposal or (b) participate in any discussions or negotiations regarding, or furnish to any Person any information in respect of, or take any other action to facilitate, any Acquisition Proposal or any inquiries or the making or implementation of any proposal that constitutes, or offer (including, without limitationmay reasonably be expected to lead to, any proposal or offer to its shareholders) with respect to a mergerAcquisition Proposal. Immediately after the execution and delivery of this Agreement, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion each of the assets or any equity securities (or any debt securities convertible into equity securities) ofCompany and the Unitholders will, such party or any of its Subsidiariesand will cause their respective officers, directors, employees, investment bankers, attorneys, accountants and other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data agents and Representatives to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) that it will immediately cease and cause to be terminated terminate any existing activities, discussions or negotiations with any parties conducted heretofore with in respect to of any possible Acquisition Proposal and will promptly inform Holdings of the foregoing receipt of any subsequent Acquisition Proposal. Each of the Company and each the Unitholders will take the all necessary steps to promptly inform the individuals or entities referred to above in the first sentence of this Section 5.1 of the obligations undertaken in this Section 7.15.1. “Acquisition Proposal” means an inquiry, offer or proposal regarding any of the following (other than the Contemplated Transactions) involving the Company: (i) any merger, consolidation, share exchange, recapitalization, business combination or other similar transaction; and (ii) any sale of Units or other equity interests or securities, (iii) that it will notify the any sale, lease, exchange, mortgage, pledge, Transfer or other party immediately if any such inquiries or proposals are received by, any such information is requested from, disposition of all or any such negotiations material portion of its assets in a single transaction or discussions are sought series of transactions; or (iv) any public announcement of a proposal, plan or intention to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors do any of the General Partner of RELP (the "Board of Directors") foregoing or the Board of Trust Managers from (x) 19 furnishing information any agreement to or entering into discussions or negotiations with, engage in any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreementforegoing.
Appears in 1 contract
Acquisition Proposals. Prior From and after the date of this Agreement and prior to the Effective Time, RELP and AIP each agree except as provided below, the Company agrees (ia) that neither of them the Company nor any of their its Subsidiaries shall, and each of them the Company shall direct and use its reasonable best efforts to cause its respective officers, General Partnerdirectors, limited partners, Trust Managers, employees, agents, affiliates employees and authorized agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, ) not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholdersstockholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party the Company or any of its Subsidiaries, other than the transactions contemplated by this Agreement Subsidiaries (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (iib) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.16.2; and (iiic) that it will notify the other party Parent immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it, but need not disclose the identity of the other party or the terms of its proposals; provided, however, that nothing contained in this Section 7.1 6.2 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers Company from (xi) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposalproposal in writing, not subject to any financing condition, to acquire the Company pursuant to a merger, 31 consolidation, share exchange, purchase of a substantial portion of the assets, business combination or other similar transaction, if, and only to the extent that, that (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith after consultation with the Company's outside counsel that such action is required for it the Board of Directors to comply with its fiduciary duties to limited partners or shareholders, as applicable, stockholders imposed by law as advised by counsellaws, (B) prior to or concurrently with furnishing such information to, or entering into discussions or negotiations with, such a person or entity, such party the Company provides written notice to the other party to this Agreement Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such a person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party Company keeps the other party to this Agreement Parent informed of the status (but not the identity or terms) of any such discussions or negotiations; and (yii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing Subject to Article IX, nothing in this Section 7.1 6.02 shall (ix) permit any party the Company to terminate this Agreement (except as specifically provided in Article IX hereof)Agreement, (iiy) permit any party the Company to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iiiz) affect effect any other obligation of any party under this Agreement.
Appears in 1 contract
Sources: Tender Offer Statement
Acquisition Proposals. Prior to the Effective TimeUnless and until this Agreement shall have been terminated in accordance with its terms, RELP Tuck▇▇ ▇▇▇ees and AIP each agree covenants (ia) that neither of them it nor any of their Subsidiaries Tuck▇▇ ▇▇▇sidiary shall, and each of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managersdirectors, employees, agents, affiliates agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, the Tuck▇▇ ▇▇▇sidiaries) not to, directly or indirectly, initiate, solicit or encourage, directly or indirectly, encourage any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholdersstockholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all 10% or any significant portion more of the assets or any equity securities or partnership interests (or any debt securities convertible into equity securitiesincluding, without limitation, TOP Units) of, such party or Tuck▇▇ ▇▇ any of its SubsidiariesTuck▇▇ ▇▇▇sidiary, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (iib) that it will Tuck▇▇ ▇▇▇l immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and (iiic) that it will Tuck▇▇ ▇▇▇l notify the other party immediately Brad▇▇▇ ▇▇▇ediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; providedPROVIDED, howeverHOWEVER, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP Tuck▇▇, ▇▇om (the "Board of Directors"i) or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust ManagersTuck▇▇, as applicable▇▇ter consultation with and based upon the advice of Maye▇, determines ▇▇ow▇ & ▇lat▇, ▇▇ another nationally recognized law firm selected by Tuck▇▇, ▇▇termines in good faith that such action is required for it the Board of Directors to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counselstockholders under applicable law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides Tuck▇▇ ▇▇▇vides written notice to the other party to this Agreement to Brad▇▇▇ ▇▇ the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed Tuck▇▇ ▇▇▇ps Brad▇▇▇ ▇▇▇ormed of the status (but not the terms) of any such discussions or negotiations; and (yii) to the extent applicable, complying with Rule 14e-2 and Rule 14a-9 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing Notwithstanding anything to the contrary set forth herein, nothing in this Section 7.1 shall (ix) permit any party to Tuck▇▇ ▇▇ terminate this Agreement (except as specifically provided in Article IX 9 hereof), (iiy) except as specifically provided in Article 9 hereof, permit Tuck▇▇ ▇▇ any party Tuck▇▇ ▇▇▇sidiary to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party neither Tuck▇▇ ▇▇▇ any Tuck▇▇ ▇▇▇sidiary shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)Proposal), or (iiiz) affect any other obligation of any party under this Agreement.
Appears in 1 contract
Acquisition Proposals. Prior to the Effective Time, RELP and AIP each agree (ia) The Company agrees that neither of them it nor any of their its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and each of them that it shall direct and use its best reasonable efforts to cause its respective officers, General Partner, limited partners, Trust Managers, and its Subsidiaries' employees, agents, affiliates agents and representatives (including, without limitation, including any investment banker, attorney or accountant retained by it or any of its Subsidiaries)) (the Company, as applicableits Subsidiaries and their officers, directors, employees, agents and representatives being the "Company Representatives") not to, initiate, solicit or encourage, directly or indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisitionreorganization, tender offershare exchange, exchange offerconsolidation, consolidation business combination, recapitalization, liquidation, dissolution or similar transaction involvinginvolving it, or any purchase of all or any significant portion sale of the consolidated assets or any equity securities (or any debt securities convertible into equity securitiesincluding without limitation stock of Subsidiaries) of, such party of it or any of its Subsidiaries, other than the transactions contemplated by this Agreement taken as a whole, having an aggregate value equal to 10% or more of its market capitalization, or any purchase or sale of, or tender or exchange offer for, 10% or more of its or any of its Subsidiaries' equity securities (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") ). The Company further agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or engage in its Subsidiaries shall, and that it shall direct and use its reasonable efforts to cause the Company Representatives not to, directly or indirectly, have any negotiations concerning, discussion with or provide any confidential information or data to, or have to any discussions with, any person Person relating to or in contemplation of an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent either the Company or its Board of Directors from: (A) 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 (B) recommending such an unsolicited bona fide written Acquisition Proposal to the shareholders of the Company if and only to the extent that, with respect to the actions referred to in clause (A): (i) the Board of Directors of the Company concludes in good faith (after consultation with its outside legal counsel and its financial advisor) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the proposal and the Person making the proposal, and would, if consummated, result in a transaction more favorable to the Company's shareholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being referred to as a "Superior Proposal"), (ii) the Board of Directors of the Company 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 the Company's shareholders under applicable law and (iii) prior to providing any information or data to any Person in connection with an Acquisition Proposal by any such Person, the Board of Directors of the Company shall receive from such Person an executed confidentiality agreement; provided, that such confidentiality agreement shall contain terms that allow the Company to comply with its obligations under this Section 7.2.
(b) The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each Acquisition Proposal. The Company agrees that it will take the necessary steps to promptly inform the individuals or entities referred to above each Company Representative of the obligations undertaken in this Section 7.1; and (iii) that it will notify the other party immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreement.obligations
Appears in 1 contract
Sources: Merger Agreement (Corzon Inc)
Acquisition Proposals. Prior to the Effective Time(a) Unless and until this Agreement shall have been terminated in accordance with its terms, RELP Copl▇▇ ▇▇▇ees and AIP each agree covenants that (iA) that neither of them it nor any of their Subsidiaries Copl▇▇ ▇▇▇sidiary shall, and each of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managersdirectors, employees, agents, affiliates agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, the Copl▇▇ ▇▇▇sidiaries) not to, directly or indirectly, initiate, solicit or encourage, directly or indirectly, knowingly encourage any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholdersstockholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase (except as permitted under Section 7.2 hereof) of all 10% or any significant portion more of the assets or assets, any equity securities (or partnership interests of Copl▇▇ ▇▇ any debt securities convertible into equity securities) of, such party or any of its SubsidiariesCopl▇▇ ▇▇▇sidiary, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (iiB) that it will Copl▇▇ ▇▇▇l immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and (iiiC) that it will Copl▇▇ ▇▇▇l notify the other party Buyer immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained Copl▇▇.
(b) Notwithstanding anything set forth in this Section 7.1 shall prohibit Agreement to the contrary (i) the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing Copl▇▇ ▇▇▇ furnish information to or entering enter into discussions or negotiations with, with any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or of Copl▇▇, ▇▇ter consultation with and based upon the advice of Good▇▇▇ ▇▇▇cter & Hoar, Hale and Dorr ▇▇ another nationally recognized law firm selected by the Board of Trust ManagersDirectors of Copl▇▇, as applicable, determines ▇▇termines in good faith that such action is required for it the Board of Directors to comply with its fiduciary duties to limited partners or shareholdersstockholders under applicable law, as applicable, imposed by law as advised by counsel, (B) PROVIDED that prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides Copl▇▇ ▇▇▇vides written notice to the other party to this Agreement Buyer to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement Copl▇▇ ▇▇▇ps Buyer informed of the status (but not the terms) of any such discussions or negotiations; and , (yii) the Board of Directors of Copl▇▇ ▇▇▇, to the extent applicable, complying comply with Rule Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or and (iii) affect any other obligation Copl▇▇ ▇▇▇ furnish information to, enter into discussions or negotiations with, execute an agreement with, or consummate transactions concerning (w) Bermant (including, without limitation, the Bermant/UBC Agreement) in connection with the sale of any party under this Agreementthe UBC Interest, (x) Summer Hill, Ltd. and its affiliates, successors and assigns in connection with that certain purchase option of Summer Hill, Ltd. described in Section 7.2 of the Copl▇▇ ▇▇▇closure Letter (the "Summer Hill Option"), and (y) Gary ▇▇▇ Leno▇▇ ▇▇▇▇▇▇, ▇▇ connection with the exchange of tenancy-in-common interests affecting certain property of the Company described in Section 5.9 of the Copl▇▇ ▇▇▇closure Letter.
Appears in 1 contract
Acquisition Proposals. Prior to the Effective Time, RELP and AIP each agree (ia) that neither of them nor any of their Subsidiaries No ▇▇▇▇▇▇▇ Entity shall, and each of them it shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, Representatives not to, initiate, solicit or encourage, directly or indirectly, (i) solicit, initiate, encourage (including by providing information or assistance), facilitate or induce any Acquisition Proposal, (ii) engage or participate in any discussions or negotiations regarding, or furnish or cause to be furnished to any Person any information or data in connection with, or take any other action to facilitate any inquiries or the making or implementation of any offer or proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involvingthat constitutes, or any purchase of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred may reasonably be expected to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data lead to, or have any discussions with, any person relating to an Acquisition Proposal, (iii) adopt, 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 facilitate relating to any effort 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 attempt Representative of ▇▇▇▇▇▇▇ shall constitute a breach of this Section 7.2 by ▇▇▇▇▇▇▇. In addition to make or implement an the foregoing, ▇▇▇▇▇▇▇ shall not submit to the vote of its shareholders any Acquisition Proposal; Proposal other than the Merger.
(iib) that it will Each ▇▇▇▇▇▇▇ Entity shall, and shall cause their respective Representatives to, (i) immediately cease and cause to be terminated any all existing activities, discussions or discussions, conversations, negotiations and other communications with any parties Person conducted heretofore with respect to any offer or proposal that constitutes, or may reasonably be expect to lead to, an Acquisition Proposal, (ii) request the prompt return or destruction of all confidential information previously furnished to any Person (other than the foregoing ▇▇▇▇▇▇▇ Entities and each will take the necessary steps their Representatives) that has made or indicated an intention to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and make an Acquisition Proposal, (iii) that not waive any or amend any “standstill” provision or provisions of similar effect to which it will notify the other party immediately if is a beneficiary and shall strictly enforce any such inquiries provisions and (iv) enforce any existing confidentiality agreements to which it is a party.
(c) If any ▇▇▇▇▇▇▇ Entity or proposals are received bytheir respective Representatives receives an Acquisition Proposal or any request for nonpublic information or any inquiry that could reasonably be expected to lead to any Acquisition Proposal, ▇▇▇▇▇▇▇ shall as promptly as practicable (but in no event more than 24 hours) notify ▇▇▇▇▇▇▇ 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 making any such information is requested fromAcquisition Proposal, request or inquiry), and ▇▇▇▇▇▇▇ shall as promptly as practicable (but in no event more than 24 hours) provide to ▇▇▇▇▇▇▇ (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. ▇▇▇▇▇▇▇ shall provide ▇▇▇▇▇▇▇ as promptly as practicable (but in no event more than 24 hours) with notice setting forth all such information as is necessary to keep ▇▇▇▇▇▇▇ 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. If ▇▇▇▇▇▇▇ determines (after consultation with outside legal counsel) that any term or condition of an Acquisition Proposal is unclear, ▇▇▇▇▇▇▇ may request (but only through written communication) clarification regarding such negotiations term or discussions are sought to be initiated or continued with, itcondition; provided, however, that nothing copies of all such communications and responses thereto shall be provided to ▇▇▇▇▇▇▇ as promptly as practicable (but in no event more than 24 hours).
(d) Notwithstanding anything herein to the contrary (including, for the avoidance of doubt, the other provisions of this Section 7.2), at any time prior to ▇▇▇▇▇▇▇’▇ Shareholders’ Meeting, the board of directors of ▇▇▇▇▇▇▇ may submit this Agreement to ▇▇▇▇▇▇▇’▇ shareholders without recommendation (although the resolution approving this Agreement as of the date hereof may not be rescinded or amended) if (i) ▇▇▇▇▇▇▇ has received a Superior Proposal (after giving effect to the terms of any revised offer by ▇▇▇▇▇▇▇ pursuant to this Section 7.2(d)), and (ii) the board of directors of ▇▇▇▇▇▇▇ has determined in good faith, after consultation with its outside legal counsel, that it would be a violation of the directors’ fiduciary duties under applicable Law to make or continue to make the ▇▇▇▇▇▇▇ Recommendation in which event, the board of directors of ▇▇▇▇▇▇▇ may communicate the basis for its lack of ▇▇▇▇▇▇▇ Recommendation; provided, that the board of directors of ▇▇▇▇▇▇▇ may not take the actions set forth in this Section 7.2(d) unless:
(i) ▇▇▇▇▇▇▇ has complied in all material respects with this Section 7.2;
(ii) ▇▇▇▇▇▇▇ has provided ▇▇▇▇▇▇▇ at least five 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 five Business Day period, ▇▇▇▇▇▇▇ has and has caused its financial advisors and outside legal counsel to, consider and negotiate with ▇▇▇▇▇▇▇ in good faith (to the extent ▇▇▇▇▇▇▇ desires to so negotiate) regarding any proposals, adjustments or modifications to the terms and conditions of this Agreement proposed by ▇▇▇▇▇▇▇; and
(iv) the board of directors of ▇▇▇▇▇▇▇ has determined in good faith, after consultation with its outside legal counsel and considering the results of such negotiations and giving effect to any proposals, amendments or modifications proposed to by ▇▇▇▇▇▇▇, if any, that such Superior Proposal remains a Superior Proposal and that it would nevertheless be a violation of the director’s fiduciary duties under applicable Law to make or continue to make the ▇▇▇▇▇▇▇ Recommendation. Any material amendment to any Acquisition Proposal, will be deemed to be a new Acquisition 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) Nothing contained in this Section 7.1 Agreement shall prohibit the Board prevent ▇▇▇▇▇▇▇ or its board of Directors directors from complying with applicable provisions of the General Partner of RELP (Exchange Act, including the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations withSEC’s Regulation 14E thereunder, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during or from making any disclosure to the term shareholders of this Agreement ▇▇▇▇▇▇▇ if the board of directors of ▇▇▇▇▇▇▇ (it being agreed after consultation with outside legal counsel) concludes that during its failure to do so would be a violation of the term of this Agreement, directors’ fiduciary duties under applicable Law; provided that any actions taken to comply with such rules will in no party shall enter into way eliminate or modify the effect that any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party such action would otherwise have under this Agreement.
Appears in 1 contract
Acquisition Proposals. Prior to The Company and the Effective TimeStockholder agrees that from and after the date of this Agreement (a) neither any Stockholder nor the Company, RELP and AIP each agree (i) that neither of them nor any of their Subsidiaries its officers and directors shall, and each of them the Stockholder and the Company shall direct and use its their best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, the Company's employees, agents, affiliates agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholdersStockholder) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement Company (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (iib) that it the Stockholder and the Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above in the first sentence hereof of the obligations undertaken in this Section 7.16.10; and (iiic) that it the Stockholder and the Company will notify the other party Acquiror immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") Company or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this AgreementStockholder.
Appears in 1 contract
Sources: Merger Agreement (Universal Document MGMT Systems Inc)
Acquisition Proposals. Prior to During the Effective Timeperiod from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing, RELP the Sellers and AIP each agree (i) that neither of them nor any of their Subsidiaries shallthe Shareholders shall not, and shall cause each of them shall direct and use its best efforts to cause its respective officersofficer, General Partnerdirector, limited partnersmanager or employee of, Trust Managers, employees, agents, affiliates and representatives (including, without limitation, or any investment banker, attorney attorney, accountant or accountant other representative retained by it by, the Sellers or any of its Subsidiaries), as applicable, the Shareholders not to, initiatesolicit, solicit initiate or encourage, directly or indirectly, any inquiries or the making or implementation encourage submission of any proposal or offer (includingincluding by way of furnishing information) from any Person which constitutes, without limitationor may reasonably be expected to lead to, any Acquisition Proposal other than this Agreement. As used in this Agreement, “Acquisition Proposal” shall mean (i) any proposal for a merger or other business combination involving any Seller; (ii) any proposal or offer to its shareholders) with respect to acquire in any manner a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involvingsubstantial equity interest in, or any purchase of all or any significant a substantial portion of the assets of, any Seller, including any of the Purchased Assets; or (iii) any proposal to acquire any interest in the issued and outstanding common stock or other equity interests of any Seller. During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing, (i) the Sellers and the Shareholders shall, and shall cause each officer, director, manager or employee of, or any equity securities (investment banker, attorney, accountant or any debt securities convertible into equity securities) ofother representative retained by, such party the Sellers or any of its Subsidiaries, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred Shareholders to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) that it will immediately cease and cause to be terminated any existing activitiessolicitation, encouragement, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and (iii) Persons that it will notify the other party immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to may be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement ongoing with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement and with any person that provides for, Persons who have made or indicated an intention to make an Acquisition Proposal; and (ii) the Sellers and the Shareholders shall promptly (and in any way facilitatesevent within twenty-four (24) hours) provide to the Purchasers (a) a written summary of the terms of any Acquisition Proposal not made in writing (other than terms that are, individually and in the aggregate, inconsequential) and (b) copies of any written materials provided by any Person(s) making an Acquisition Proposal (other than including a copy of any Acquisition Proposal made in writing). During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing, the Sellers and the Shareholders agree that they will not enter into any confidentiality agreement with any Person subsequent to the date of this Agreement which prohibits the Sellers or the Shareholder from providing any information to the Purchasers in customary form)), or (iii) affect any other obligation of any party under accordance with this AgreementSection 6.3.
Appears in 1 contract
Sources: Asset Purchase Agreement (Frontier Oilfield Services Inc)
Acquisition Proposals. Prior to the Effective Time, RELP (a) Each of Hawthorne and AIP each Parent agree (i) that neither of them nor any of their Subsidiaries it shall, and each of them shall direct and use its reasonable best efforts to cause its respective affiliates, directors, officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates agents and representatives (including, including without limitation, limitation any investment banker, attorney financial advisor, attorney, accountant or other representative retained by it) to, immediately cease any discussions or negotiations with any other parties that may be ongoing with respect to the possibility or consideration of any Acquisition Proposal (as defined below), and will use its reasonable best efforts to enforce any confidentiality or similar agreement relating to any Acquisition Proposal, including by requesting the other party to promptly return or destroy any confidential information previously furnished by such party thereunder. From the date of this Agreement through the Effective Time, each of Hawthorne and Parent shall not, nor shall it authorize or permit any of its directors, officers or employees (and those of any Hawthorne Subsidiary or Parent Subsidiary) or any investment banker, financial advisor, attorney, accountant or other representative retained by it (or any of its Subsidiaries), as applicable, not Subsidiary) to, initiate, solicit or encourage, directly or indirectlyindirectly through another person, (i) solicit, initiate or encourage (including by way of furnishing information or assistance), or take any other action designed to facilitate or that is likely to result in, any inquiries or the making or implementation of any proposal or offer (includingthat constitutes, without limitationor is reasonably likely to lead to, any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal", (ii) or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, to any person relating to an any Acquisition Proposal, or otherwise facilitate (iii) participate in any effort or attempt to make or implement an Acquisition Proposal; (ii) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with regarding any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and (iii) that it will notify the other party immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if(iv) except in accordance with Section 8.01(j) in the case of Hawthorne, and only approve or recommend, propose to the extent that, (A) the Board of Directors approve or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information torecommend, or entering into discussions execute or negotiations withenter into, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreement.letter of
Appears in 1 contract
Acquisition Proposals. Prior to the Effective Time(a) Unless and until this Agreement shall have been terminated in accordance with its terms, RELP ▇▇▇▇▇▇ agrees and AIP each agree covenants that (iA) that neither of them it nor any of their Subsidiaries ▇▇▇▇▇▇ Subsidiary shall, and each of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managersdirectors, employees, agents, affiliates agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its the ▇▇▇▇▇▇ Subsidiaries), as applicable, ) not to, directly or indirectly, initiate, solicit or encourage, directly or indirectly, knowingly encourage any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholdersstockholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase (except as permitted under Section 7.2 hereof) of all 10% or any significant portion more of the assets or assets, any equity securities (or partnership interests of ▇▇▇▇▇▇ or any debt securities convertible into equity securities) of, such party or any of its Subsidiaries▇▇▇▇▇▇ Subsidiary, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (iiB) that it ▇▇▇▇▇▇ will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and (iiiC) that it ▇▇▇▇▇▇ will notify the other party Buyer immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained ▇▇▇▇▇▇.
(b) Notwithstanding anything set forth in this Section 7.1 shall prohibit Agreement to the contrary (i) the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing ▇▇▇▇▇▇ may furnish information to or entering enter into discussions or negotiations with, with any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors of ▇▇▇▇▇▇, after consultation with and based upon the advice of ▇▇▇▇▇▇▇ Procter & Hoar, Hale and ▇▇▇▇ or another nationally recognized law firm selected by the Board of Trust Managers, as applicableDirectors of ▇▇▇▇▇▇, determines in good faith that such action is required for it the Board of Directors to comply with its fiduciary duties to limited partners or shareholdersstockholders under applicable law, as applicable, imposed by law as advised by counsel, (B) provided that prior to furnishing such information to, or entering into -------- discussions or negotiations with, such person or entity, ▇▇▇▇▇▇ provides written notice to Buyer to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party ▇▇▇▇▇▇ keeps the other party to this Agreement Buyer informed of the status (but not the terms) of any such discussions or negotiations; and , (yii) the Board of Directors of ▇▇▇▇▇▇ may, to the extent applicable, complying comply with Rule Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or and (iii) affect any other obligation ▇▇▇▇▇▇ may furnish information to, enter into discussions or negotiations with, execute an agreement with, or consummate transactions concerning (w) Bermant (including, without limitation, the Bermant/UBC Agreement) in connection with the sale of any party under this Agreementthe UBC Interest, (x) Summer Hill, Ltd. and its affiliates, successors and assigns in connection with that certain purchase option of Summer Hill, Ltd. described in Section 7.2 of the ▇▇▇▇▇▇ Disclosure Letter (the "Summer Hill Option"), and (y) ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇, in connection with the exchange of tenancy-in-common interests affecting certain property of the Company described in Section 5.9 of the ▇▇▇▇▇▇ Disclosure Letter.
Appears in 1 contract
Acquisition Proposals. Prior to the Effective TimeUnless and until this Agreement shall have been terminated in accordance with its terms, RELP MDI agrees and AIP each agree covenants that (ia) that neither of them it nor any of their Subsidiaries MDI Subsidiary shall, and each of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managersdirectors, employees, agents, affiliates agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its the MDI Subsidiaries), as applicable, ) not to, directly or indirectly, initiate, solicit or encourage, directly or indirectly, encourage any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholdersstockholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all 10% or any significant portion more of the assets or any equity securities or partnership interests (or any debt securities convertible into equity securitiesincluding, without limitation, partnership interests of MAB) of, such party MDI or any of its SubsidiariesMDI Subsidiary, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person Person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (iib) that it MDI will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and (iiic) that it MDI will notify the other party immediately Brad▇▇▇ ▇▇▇ediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; providedPROVIDED, howeverHOWEVER, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers MDI, from (xi) 19 furnishing information to or entering into discussions or negotiations with, any person Person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors of MDI, after consultation with and based upon the advice of McGr▇▇▇, ▇▇rth, Mull▇▇ & ▇rat▇, ▇.C., or Board of Trust Managers, as applicableanother nationally recognized law firm selected by MDI, determines in good faith that such action is required for it the Board of Directors to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counselstockholders under applicable law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person Person or entity, such party MDI provides written notice to the other party to this Agreement to Brad▇▇▇ ▇▇ the effect that it is furnishing information to, or entering into discussions or negotiations with, such person Person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party MDI keeps the other party to this Agreement informed Brad▇▇▇ ▇▇▇ormed of the status (but not the terms) of any such discussions or negotiations, including, without limitation, promptly informing Brad▇▇▇ (▇▇ any case within 24 hours) of all material developments relating thereto; and (yii) to the extent applicable, complying with Rule 14e-2 and Rule 14a-9 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing Notwithstanding anything to the contrary set forth herein, nothing in this Section 7.1 shall (ix) permit any party MDI to terminate this Agreement (except as specifically provided in Article IX 9 hereof), (iiy) except as specifically provided in Article 9 hereof, permit MDI or any party MDI Subsidiary to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party neither MDI nor any MDI Subsidiary shall enter into any agreement with any person Person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)Proposal), or (iiiz) affect any other obligation of any party under this Agreement.
Appears in 1 contract
Acquisition Proposals. Prior to Until the Effective Time, RELP and AIP each agree earlier of (i) that neither May 30, 1999 or (ii) the termination of them nor any of their Subsidiaries shallthis Agreement pursuant to Article XI, Shareholders, the Company and each of them shall direct the Subsidiaries and use its best efforts to cause its their respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, will not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholdersshareholders of the Company) with respect to a merger, acquisitionconsolidation, tender offer, binding share exchange offer, consolidation or any other business combination or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party of the Company or any of its Subsidiaries, other than the transactions contemplated by this Agreement Subsidiaries (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or ), engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, Proposal or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) that it . Shareholders, the Company and each of the Subsidiaries will immediately cease and cause to be terminated terminate any existing activities, discussions discussion or negotiations with any parties conducted heretofore with respect to any of the foregoing foregoing. Shareholders, the Company and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and (iii) that it Subsidiaries will notify the other party immediately Parent promptly if any such inquiries or proposals are received byreceived, any such information is requested fromrequested, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, continued. The Shareholders represent and acknowledge that nothing contained in this compliance with Section 7.1 shall prohibit 6.03 does not affect the Board fiduciary obligations of Directors directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information Company because such Shareholders have agreed to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order vote for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreementtransactions contemplated hereby.
Appears in 1 contract
Acquisition Proposals. Prior to the Effective Time, RELP Mutual, Holding, Principal and AIP Coventry each agree (ia) that neither none of them nor any of their Subsidiaries shall, and each of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managersdirectors, employees, agents, affiliates agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, ) not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, share exchange, acquisition, tender offer, exchange offer, consolidation or similar transaction directly or indirectly involving, or any purchase or acquisition, directly or indirectly, of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party Principal or any of its Subsidiaries, other than the transactions contemplated by this Agreement Principal Subsidiaries or Coventry or any of the Coventry Subsidiaries (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (iib) that it they and each of them will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.16.1; and (iiic) that it they and each of them will notify the other party parties hereto immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued withwith it. Notwithstanding the foregoing, it; provided, however, that nothing any reorganization of Mutual shall not violate the provisions of this Section 6.1 if such reorganization shall not result in any transfer of the Principal Assets or Mutual Indemnity Agreements to any Person who is not an Affiliate of Mutual and any such transferee agrees to be bound by the provisions of this Agreement. Notwithstanding anything to the contrary contained in this Section 7.1 shall prohibit the 6.1 or in any other provision of this Agreement, Coventry and its Board of Directors of the General Partner of RELP (the "Board of Directors"i) or the Board of Trust Managers from (x) 19 furnishing information to or entering into may participate in discussions or negotiations with(including, as a part thereof, making any person counterproposal) with or entity that makes furnish information to any third party making an unsolicited written Acquisition Proposal that the Board determines is a bona fide offer (a "Potential Acquiror") if Coventry's Board of Director's is advised by a nationally recognized investment banking firm designated by Coventry and reasonably acceptable to Mutual that such Potential Acquiror has the financial wherewithal to consummate such an Acquisition Proposal (or that it is confident that such Potential Acquiror will be capable of consummating such Acquisition Proposal, if, and only to the extent that, ) provided that (Aa) the Board determines in good faith, after receiving advice from such financial advisor, that such third party has submitted to Coventry an Acquisition Proposal which is a superior proposal to the transactions contemplated under this Agreement (a "Superior Proposal"), and (b) the Board determines in good faith, based upon advice of Directors its outside legal counsel, that participation in such discussions or negotiations or furnishing such information is necessary to fulfill the Board's fiduciary duties under applicable law. The Board shall be entitled to withdraw its recommendation in favor of Trust Managersthe transactions contemplated by this Agreement, as applicable, and to approve and recommend acceptance by shareholders of an unsolicited written Acquisition Proposal that is a Superior Proposal if the Board determines in good faith that such action is required for it to comply with actions are in the best interests of its fiduciary duties to limited partners or shareholders, as applicableand, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to based upon advice of its outside counsel the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined Board determines in good faith was required that such approval is necessary to fulfill the Board's fiduciary duty under applicable law, and provision is made by Potential Acquiror to pay the fee provided in Section 8.5(b) at the time therein specified. Coventry agrees that any non-public information furnished to a Potential Acquiror will be pursuant to a confidentiality agreement substantially similar to the confidentiality provisions of the confidentiality agreement entered into between Coventry, Mutual and Principal. In the event that Coventry shall determine to provide any information as described above, or shall receive any such 57 unsolicited Acquisition Proposal, it shall promptly inform Mutual in writing as to the fact that information is to be executed in order for provided and shall furnish to Mutual the identity of the recipient of such information and/or the Potential Acquiror and the terms of such Acquisition Proposal, except to the extent that the Board determines in good faith, based upon advice of Directors or Board of Trust Managersits outside legal counsel, as applicable, to comply with its that any such action described in this sentence would violate such Board's fiduciary duties to limited partners under, or shareholdersotherwise violate, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement applicable law. Coventry will keep Mutual reasonably informed of the status (but not the termsincluding amendments or proposed amendments) of any such discussions or negotiations; and (y) Acquisition Proposal except to the extent applicablethat the Board determines in good faith, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit based upon advice of its outside legal counsel, that any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides forsuch action would violate such Board's fiduciary duties under, or in any way facilitatesotherwise violate, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreementapplicable law.
Appears in 1 contract
Sources: Capital Contribution and Share Exchange Agreement (Coventry Corp)
Acquisition Proposals. Prior to the Effective Time, RELP STH and AIP PMCT each agree (ia) that neither of them nor any of their Subsidiaries shall, and each of them shall direct and use its best efforts to cause its respective officers, General Partnertrust managers, limited partners, Trust Managersdirectors, employees, agents, affiliates and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, ) not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all 20% or any significant portion more of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (iib) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.18.1; and (iiic) that it will notify the other party immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 8.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") Trust Managers or the Board of Trust Managers Directors of such party from (xi) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors Trust Managers or Board of Trust Managers, as applicable, Directors of such party determines in good faith that such action is required for it such body to comply with its fiduciary duties to limited partners or shareholders, as applicable, shareholders imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, such body to comply with its fiduciary duties to limited partners or shareholders, as applicable, shareholders imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (yii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 8.1 shall (ix) permit any party to terminate this Agreement (except as specifically provided in Article IX 10 hereof), (iiy) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iiiz) affect any other obligation of any party under this Agreement.
Appears in 1 contract
Acquisition Proposals. Prior to (a) From the Effective Timedate hereof until this Agreement has been terminated as provided herein, RELP and AIP each agree (i) that neither of them Seller shall not, nor shall it permit any of their Subsidiaries shallits subsidiaries to, and each or authorize or permit any director, officer or employee of them shall direct and use Seller or any of its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates and representatives (including, without limitation, subsidiaries or any investment banker, attorney attorney, accountant or accountant retained by it other advisor or representative of Seller or any of its Subsidiaries), as applicable, not subsidiaries (the "SELLER REPRESENTATIVES") to, initiate, solicit or encourage, directly or indirectly, (i) solicit, initiate or knowingly encourage any Takeover Proposal (as defined below) or any inquiries or the making or implementation of any proposal that constitutes or offer could reasonably be expected to lead to a Takeover Proposal or (includingii) enter into, without limitationcontinue or otherwise participate in any discussions or negotiations regarding, or furnish to any proposal or offer to its shareholders) person any information with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have otherwise cooperate in any discussions withway with respect to, any person relating to an Acquisition Takeover Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and (iii) that it will notify the other party immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit at any time prior to obtaining the approval of its shareholders, the Board of Directors of the General Partner of RELP (the "Board of Directors") Seller or the Board of Trust Managers from (x) 19 furnishing information Seller Representatives may, in response to or entering into discussions or negotiations with, any person or entity that makes an unsolicited a bona fide Acquisition Proposal, if, and only to the extent that, (A) the written Takeover Proposal that such Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action constitutes or is required for it reasonably likely to comply lead to a Superior Proposal (as defined below), and which Takeover Proposal was unsolicited and did not otherwise result from a breach of this Section 5.03, and subject to compliance with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counselSection 5.03(c) and (d), (Bx) prior furnish information with respect to furnishing Seller and its subsidiaries to the person making such Takeover Proposal (and its representatives) pursuant to a customary confidentiality agreement, provided that all such information tois provided to Buyer or has been previously provided to Buyer, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to participate in discussions or negotiations with the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition making such Takeover Proposal (other than a confidentiality agreement in customary form)), or (iiiand its representatives) affect any other obligation of any party under this Agreementregarding such Takeover Proposal.
Appears in 1 contract
Acquisition Proposals. Prior to the Effective Time, RELP STH and AIP PMCT each agree (ia) that neither of them nor any of their Subsidiaries shall, and each of them shall direct and use its best efforts to cause its respective officers, General Partnertrust managers, limited partners, Trust Managersdirectors, employees, agents, affiliates and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, ) not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all 20% or any significant portion more of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (iib) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.18.1; and (iiic) that it will notify the other party immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 8.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") Trust Managers or the Board of Trust Managers Directors of such party from (xi) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors Trust Managers or Board of Trust Managers, as applicable, Directors of such party determines in good faith that such action is required for it such body to comply with its fiduciary duties to limited partners or shareholders, as applicable, shareholders imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, such body to comply with its fiduciary duties to limited partners or shareholders, as applicable, shareholders imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (yii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 8.1 shall (ix) permit any party to terminate this Agreement (except as specifically provided in Article IX 10 hereof), (iiy) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreement.with
Appears in 1 contract
Acquisition Proposals. Prior to the Effective TimeUnless and until this Agreement shall have been terminated in accordance with its terms, RELP MDI agrees and AIP each agree covenants that (ia) that neither of them it nor any of their Subsidiaries MDI Subsidiary shall, and each of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managersdirectors, employees, agents, affiliates agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its the MDI Subsidiaries), as applicable, ) not to, directly or indirectly, initiate, solicit or encourage, directly or indirectly, encourage any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholdersstockholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all 10% or any significant portion more of the assets or any equity securities or partnership interests (or any debt securities convertible into equity securitiesincluding, without limitation, partnership interests of MAB) of, such party MDI or any of its SubsidiariesMDI Subsidiary, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person Person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (iib) that it MDI will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and (iiic) that it MDI will notify the other party ▇▇▇▇▇▇▇ immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers MDI, from (xi) 19 furnishing information to or entering into discussions or negotiations with, any person Person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors of MDI, after consultation with and based upon the advice of ▇▇▇▇▇▇▇, North, ▇▇▇▇▇▇ & ▇▇▇▇▇, P.C., or Board of Trust Managers, as applicableanother nationally recognized law firm selected by MDI, determines in good faith that such action is required for it the Board of Directors to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counselstockholders under applicable law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person Person or entity, such party MDI provides written notice to the other party to this Agreement ▇▇▇▇▇▇▇ to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person Person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party MDI keeps the other party to this Agreement ▇▇▇▇▇▇▇ informed of the status (but not the terms) of any such discussions or negotiations, including, without limitation, promptly informing ▇▇▇▇▇▇▇ (in any case within 24 hours) of all material developments relating thereto; and (yii) to the extent applicable, complying with Rule 14e-2 and Rule 14a-9 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing Notwithstanding anything to the contrary set forth herein, nothing in this Section 7.1 shall (ix) permit any party MDI to terminate this Agreement (except as specifically provided in Article IX 9 hereof), (iiy) except as specifically provided in Article 9 hereof, permit MDI or any party MDI Subsidiary to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party neither MDI nor any MDI Subsidiary shall enter into any agreement with any person Person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)Proposal), or (iiiz) affect any other obligation of any party under this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Mid America Realty Investments Inc)
Acquisition Proposals. Prior The Company agrees that after the date hereof and prior to the earlier of the termination of this Agreement in accordance with its terms and the Effective Time, RELP and AIP each agree (i) that neither of them it nor any of their its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and each of them that it shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, and its Subsidiaries' employees, agents, affiliates agents and representatives (including, without limitation, including any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, ) not to, initiate, solicit or encourage, directly or indirectly, initiate or solicit, encourage or otherwise knowingly facilitate any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisitionreorganization, tender offer, exchange offershare exchange, consolidation or similar transaction involving, or any purchase of all or any significant portion 15% or more of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party it or any of its Subsidiaries, other than the transactions contemplated by this Agreement Subsidiaries (any such proposal or offer being hereinafter referred to as an "Acquisition ProposalACQUISITION PROPOSAL"). The Company further agrees that neither it nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries shall, and that it shall direct and use its best efforts to cause its and its Subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person Person other than Parent or Merger Sub relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; PROVIDED, however, that nothing contained in this Agreement shall prevent the Company or its Board of Directors from (A) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (B) providing information in response to a request therefor by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Board of Directors receives from the Person so requesting such information an executed a customary form of confidentiality agreement; (C) engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal; or (D) withdrawing, modifying or changing, in a manner adverse to Parent, its recommendation to the stockholders of the Company with respect to this Agreement or the Merger, if and only to the extent that, (i) in each such case referred to in clause (B), (C) or (D) above, the Board of Directors of the Company determines in good faith by a majority vote after consultation with outside legal counsel that failing to take such action would be reasonably likely to result in a breach of their fiduciary duties under applicable law and (ii) in each case referred to in clause (C) or (D) above, the Board of Directors of the Company determines in good faith (after consultation with its financial advisor) that such Acquisition Proposal, if accepted, is reasonably likely to be consummated, 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 the Company's stockholders from a financial point of view than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being referred to in this Agreement as a "SUPERIOR PROPOSAL"). The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties other than Parent or Merger Sub conducted heretofore with respect to any of the foregoing and each Acquisitions Proposal. The Company agrees that it will take the necessary steps to promptly inform the any individuals or entities referred to above in the preceding sentence hereof of the obligations undertaken in this Section 7.1; and (iii) 6.2. The Company agrees that it will notify the other party Parent immediately if any such inquiries inquiries, proposals or proposals offers are received by, any such information is requested from, or any such discussions or negotiations or discussions are sought to be initiated or continued with, it; providedany of its representatives indicating, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement connection with such person notice, the name of such Person and the material terms and conditions of any proposals or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managersoffers and thereafter shall keep Parent informed, as applicableon a current basis, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of on the status (but not and terms of any such proposals or offers and the terms) status of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit The Company also agrees that it will promptly request any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed Person that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than has heretofore executed a confidentiality agreement in customary form)), connection with its consideration of acquiring it or (iii) affect any other obligation of its Subsidiaries to return all confidential information heretofore furnished to such Person by or on behalf of it or any party under this Agreementof its Subsidiaries.
Appears in 1 contract
Acquisition Proposals. Prior (a) Until the earlier to occur of the Effective TimeClosing or the termination of this Agreement in accordance with Section 14.1, RELP and AIP each agree (i) that neither Seller, Seller Guarantor or any of them their Affiliates nor any of their Subsidiaries shall, and each of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managersdirectors, employees, agents, affiliates and agents or representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries)them) (collectively, as applicable"Seller Representatives") shall, not towith respect to the Business, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation purchase and sale transaction involving the stock of Seller or similar transaction involving, or any purchase of all or any significant substantial portion of the assets of the Business, or, with respect to the Business, a transaction structured as a merger, consolidation, combination, joint venture or any equity securities (or any debt securities convertible into equity securities) of, such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement similar transaction (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, concerning or provide any confidential information or data to, to or have any discussions with, any person Person relating to an Acquisition Proposal, Proposal or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; .
(iib) that it Seller will take the necessary steps to inform the Seller Representatives of the obligations undertaken in Section 7.9(a).
(c) Seller and Seller Guarantor will promptly notify Buyers of the receipt of any Acquisition Proposal. Seller, Seller Guarantor and their Affiliates shall immediately cease and cause any Seller Representatives to be terminated cease any and all existing activities, discussions or negotiations with any parties (other than Buyers) conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and (iii) that it will notify the other party immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreementforegoing.
Appears in 1 contract
Acquisition Proposals. Prior (a) Subject to Sections 5.5(b) and 5.5(c), the Effective TimeCompany and its Subsidiaries shall not (whether directly or indirectly through Affiliates, RELP and AIP each agree (i) that neither of them nor any of their Subsidiaries shalldirectors, and each of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agentsadvisors, affiliates and representatives (includingrepresentatives, without limitationagents or other intermediaries), any investment banker, attorney or accountant retained by it nor shall the Company or any of its Subsidiaries)Subsidiaries authorize or permit any of its or their Affiliates, as applicabledirectors, not officers, employees, advisors, representatives, agents or other intermediaries to, initiate(i) solicit, solicit initiate or encouragetake any action to knowingly facilitate or knowingly encourage the submission of inquiries, directly proposals or indirectlyoffers from any Person (as defined below) relating to any Acquisition Proposal, or agree to or endorse any Acquisition Proposal; (ii) enter into any agreement to (w) facilitate or further the consummation of, or consummate, any inquiries or Acquisition Proposal, (x) facilitate the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) inquiry with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal", (y) approve or engage endorse any Acquisition Proposal or (z) in connection with any Acquisition Proposal, require it to abandon, terminate or fail to consummate the Merger; (iii) enter into or participate in any discussions or negotiations concerning, in connection with any Acquisition Proposal or provide any confidential information or data to, or have any discussions with, any person relating inquiry with respect to an Acquisition Proposal, or otherwise facilitate furnish to any effort Person any information with respect to its business, properties or attempt assets in connection with any Acquisition Proposal or inquiry with respect to make or implement an Acquisition Proposal; or (iv) agree to resolve or take any of the actions prohibited by clause (i), (ii) that it will or (iii) of this sentence. The Company and its Subsidiaries shall immediately cease cease, and cause its advisors, agents and other intermediaries to be terminated immediately cease, any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take shall demand the necessary steps return or destruction of any information previously provided with respect to inform such activities, discussion or negotiations. For purposes of this Section 5.5, the individuals term “Person” means any person, corporation, entity or entities referred to above “group,” as defined in Section 13(d) of the obligations undertaken in this Section 7.1; and (iii) that it will notify the Exchange Act, other party immediately if any such inquiries or proposals are received by, any such information is requested from, than Parent or any such negotiations Subsidiaries of Parent.
(b) Notwithstanding the foregoing or discussions are sought any other provision of this Agreement to be initiated or continued withthe contrary, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP Company, directly or indirectly through advisors, agents or other intermediaries, may (the "Board of Directors"i) or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, Rule 14d-9 and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an any Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit engage in negotiations or discussions with any party to enter into any agreement with respect to Person that has made an unsolicited bona fide written Acquisition Proposal during not resulting from or arising out of a breach of Section 5.5(a) and (iii) furnish to such Person nonpublic information relating to the term Company or any of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than Subsidiaries pursuant to a confidentiality agreement with terms no less favorable to the Company than those contained in customary form))the Confidentiality Agreement; provided, that the Board of Directors of the Company (acting upon the recommendation of the Special Committee) shall be permitted to take an action described in the foregoing clauses (ii) or (iii) affect if, and only if, prior to taking such particular action, the Board of Directors of the Company (acting upon the recommendation of the Special Committee) has determined in good faith by a majority vote that (x) such Acquisition Proposal is reasonably likely to result in a Superior Proposal and (y) after considering the advice of its outside legal counsel and financial advisor, that failure to take such particular action would be inconsistent with its fiduciary duties.
(c) Notwithstanding anything in this Section 5.5 or elsewhere in this Agreement to the contrary but subject to Section 5.5(d), if, at any time prior to the approval of the Merger and this Agreement by the Company’s stockholders by the Required Company Votes, the Company’s Board of Directors (acting upon the recommendation of the Special Committee) determines in good faith, after consultation with its financial advisors and outside legal counsel, that failure to take such action would be inconsistent with its fiduciary duties under Applicable Law (whether or not it has received an Acquisition Proposal), the Company may: (i) withdraw or modify or change in any manner its approval or recommendation of this Agreement or the Merger (it being understood that a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not be deemed to constitute such withdrawal, modification or change), and/or (ii) terminate this Agreement pursuant to Section 7.1(f)(ii), provided that, the Board of Directors of the Company shall not take any action pursuant to clause (i) above pursuant to this Section 5.5(c) prior to providing Parent written notice thereof.
(d) The Company shall notify Parent promptly (but in any event within 24 hours) after receipt by the Company of (i) any Acquisition Proposal, (ii) any request for information with respect to any Acquisition Proposal or (iii) any inquiry, proposal, discussions or negotiation with respect to any Acquisition Proposal. Any such notice shall include a summary of the material terms and conditions of any such Acquisition Proposal, request for information, inquiry, proposal, discussion or negotiation, as well as the identity of the Person making any of the foregoing. The Company shall keep Parent reasonably informed of the status and material details of any such Acquisition Proposal, indication or request, including material amendments or proposed amendments as to price and other material terms thereof. The Company shall promptly provide to Parent any non-public information concerning the Company provided to any other obligation Person in connection with any Acquisition Proposal that was not previously provided to Parent. Provided that the Company has received an Acquisition Proposal, the Board of Directors of the Company shall not take any party action under Sections 5.5(c)(i) or (ii) until after two (2) Business Days following Parent’s receipt of written notice (it being understood and agreed that any amendment to the amount or form of consideration of an Acquisition Proposal shall require a new notice and a new two (2) Business Day period) advising Parent that the Company’s Board of Directors (acting upon the recommendation of the Special Committee) intends to cause the Company to take such action, and that the Company shall, during such two (2) Business Day period, negotiate in good faith with Parent to make such adjustments to the terms and conditions of this AgreementAgreement such that any action under Sections 5.5(c)(i) or (ii) is no longer necessary.
Appears in 1 contract
Acquisition Proposals. Prior to the Effective Time, RELP and AIP each agree R. ▇▇▇▇▇▇ ▇▇▇ees (ia) that neither of them it nor any of their Subsidiaries the C.R. ▇▇▇▇▇▇ ▇▇▇sidiaries shall, and each of them it shall direct and use its best efforts to cause its respective and the C.R. ▇▇▇▇▇▇ ▇▇▇sidiaries' officers, General Partner, limited partners, Trust Managersdirectors, employees, agents, representatives and affiliates and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries)the C.R. ▇▇▇▇▇▇ ▇▇▇sidiaries) (collectively, as applicable, the "C.R. ▇▇▇▇▇▇ ▇▇▇resentatives") not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholdersstockholders but excluding the transaction contemplated by this Agreement) with respect to a merger, acquisition, tender offerconsolidation, exchange offerbusiness combination, consolidation recapitalization, liquidation or similar transaction involving, or any purchase of all or any a significant portion amount of the assets of or more than 25% of any equity securities (or any debt securities convertible into equity securities) of, such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement C.R. ▇▇▇▇▇▇ (any ▇▇y such proposal or offer offering being hereinafter referred to as an "Acquisition Proposal") or engage or participate in any negotiations or discussions concerning, or provide any confidential information or data to, or have any discussions with, any corporation, partnership, person or other entity or group relating to an any Acquisition Proposal, or otherwise assist or facilitate any effort or to attempt to make or implement an Acquisition Proposal; (iib) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.16.3.(a); and (iiic) that it will notify the other party immediately Acquiror promptly if any such inquiries or proposals (whether formal or informal) are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued withwith it or any of the C.R. ▇▇▇▇▇▇ ▇▇▇resentatives and will promptly communicate to Acquiror the terms of any proposal or inquiry which it may receive. Notwithstanding the foregoing and provided none of C.R. ▇▇▇▇▇▇, it; provided, however, that nothing contained ▇▇e C.R. ▇▇▇▇▇▇ ▇▇▇sidiaries or the C.R. ▇▇▇▇▇▇ ▇▇▇resentatives is otherwise in violation of this Section 7.1 shall prohibit 6.3.(a), the Board of Directors of the General Partner of RELP (the "Board of Directors") C.R. ▇▇▇▇▇▇ ▇▇▇ furnish information to, or the Board of Trust Managers from (x) 19 furnishing information to or entering enter into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposalproposal in writing, not subject to any financing contingency, to acquire C.R. ▇▇▇▇▇▇ ▇▇▇suant to a merger, consolidation, share exchange, purchase of a substantial portion of the assets, business combination or other similar transaction, if, and only to the extent that, that (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith (based on the written opinion of C.R. ▇▇▇▇▇▇'▇ ▇▇▇side counsel) that such action is required for it the Board of Directors to comply with its fiduciary duties to limited partners or shareholders, as applicable, stockholders imposed by law as advised by counsellaw, (B) the Board of Directors determines in good faith (based on the written opinion of a financial advisor of nationally recognized reputation) that such transaction would be more favorable to C.R. ▇▇▇▇▇▇'▇ ▇▇▇ckholders than the Offer; (C) prior to or concurrently with furnishing such information to, or entering into discussions or negotiations with, such a person or entity, such party provides C.R. ▇▇▇▇▇▇ ▇▇▇vides written notice to the other party to this Agreement Acquiror to the effect that it is furnishing information to, or entering into discussions or negotiations with, such a person or entity, and (CD) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement C.R. ▇▇▇▇▇▇ ▇▇▇ps Acquiror informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreement.
Appears in 1 contract
Sources: Tender Offer and Merger Agreement (Gibson C R Co Inc)
Acquisition Proposals. Prior to Neither the Effective TimeCompany nor the Stockholders will, RELP and AIP each agree (i) that neither nor will any of them nor authorize or permit any of their Subsidiaries shallofficer, and each of them shall direct and use its best efforts to cause its respective officersdirector, General Partneremployee, limited partners, Trust Managers, employees, agents, affiliates and representatives (including, without limitation, consultant or contractor or any investment banker, attorney attorney, accountant or accountant retained by it other agent or Representative of the Company or any of its Subsidiaries), as applicable, not the Stockholders acting on any of their behalf to, initiate, solicit or encourage, directly or indirectly, (a) solicit, initiate or intentionally encourage the submission of any Acquisition Proposal or (b) participate in any discussions or negotiations regarding, or furnish to any Person any information in respect of, or take any other action to facilitate, any Acquisition Proposal or any inquiries or the making or implementation of any proposal that constitutes, or offer (including, without limitationmay reasonably be expected to lead to, any proposal or offer to its shareholders) with respect to a mergerAcquisition Proposal. Immediately after the execution and delivery of this Agreement, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion each of the assets or any equity securities (or any debt securities convertible into equity securities) ofCompany and the Stockholders will, such party or any of and will cause its Subsidiariesofficers, directors, employees, investment bankers, attorneys, accountants and other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data agents and Representatives to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) that it will immediately cease and cause to be terminated terminate any existing activities, discussions or negotiations with any parties conducted heretofore with in respect to of any possible Acquisition Proposal and will promptly inform Parent of the foregoing receipt of any subsequent Acquisition Proposal. Each of the Company and each the Stockholders will take the all necessary steps to promptly inform the individuals or entities referred to above in the first sentence of this Section 6.1 of the obligations undertaken in this Section 7.16.1. “Acquisition Proposal” means an inquiry, offer or proposal regarding any of the following (other than the Contemplated Transactions) involving the Company: (i) any merger, consolidation, share exchange, recapitalization, business combination or other similar transaction; and (ii) any sale of shares of capital stock or other equity interests or securities; (iii) that it will notify the any sale, lease, exchange, mortgage, pledge, Transfer or other party immediately if any such inquiries or proposals are received by, any such information is requested from, disposition of all or any such negotiations material portion of its assets in a single transaction or discussions are sought series of transactions; or (iv) any public announcement of a proposal, plan or intention to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors do any of the General Partner of RELP (the "Board of Directors") foregoing or the Board of Trust Managers from (x) 19 furnishing information any agreement to or entering into discussions or negotiations with, engage in any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreementforegoing.
Appears in 1 contract
Sources: Merger Agreement (IZEA, Inc.)
Acquisition Proposals. Prior (a) Notwithstanding any other provision of this Agreement to the Effective Timecontrary, RELP during the period beginning on the date hereof and AIP each agree continuing until 11:59 p.m. (New York City time) on the 45th day thereafter, the Company and its Subsidiaries and their respective directors, officers, employees, Affiliates, investment bankers, attorneys, accountants and other advisors or representatives (collectively, “Representatives”) shall have the right to directly or indirectly: (i) initiate, solicit and encourage Acquisition Proposals (or offers, proposals, inquiries or indications of interest or other efforts or attempts that could potentially lead to Acquisition Proposals), including by way of providing access to non-public information pursuant to an Acceptable Confidentiality Agreement; provided that the Company shall promptly make available to Parent any material non-public information relating to the Company or its Subsidiaries that is made available to any Person given such access which was not previously made available to Parent; and (ii) enter into and maintain or continue discussions or negotiations with respect to Acquisition Proposals (or offers, proposals, inquiries or indications of interest or other efforts or attempts that could potentially lead to Acquisition Proposals) or otherwise cooperate with, or assist or participate in, or facilitate, any such offers, proposals, inquiries, indications, efforts, attempts, discussions or negotiations.
(b) Subject to Sections 6.03(d) and 6.03(e), from 12:00 a.m. (New York City time) on the 46th day after the date hereof (the “No-Shop Period Start Date”) until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 10, neither of them the Company nor any of their its Subsidiaries shall, and each of them nor shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates and representatives (including, without limitation, any investment banker, attorney or accountant retained by it the Company or any of its Subsidiaries), as applicable, not Subsidiaries authorize or permit any of its or their Representatives to, initiate, solicit or encourage, directly or indirectly, any inquiries (i) solicit, initiate or knowingly facilitate or encourage the making or implementation submission of any proposal Acquisition Proposal (other than from an Excluded Party), (ii) enter into or offer (including, without limitation, participate in any proposal discussions or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involvingnegotiations with, or furnish any purchase of all or any significant portion of confidential information relating to the assets or any equity securities (or any debt securities convertible into equity securities) of, such party Company or any of its SubsidiariesSubsidiaries or afford access to the business, properties, assets, books or records of the Company or any of its Subsidiaries to, any Third Party (other than an Excluded Party) for the transactions contemplated by this Agreement purpose of knowingly facilitating or encouraging an Acquisition Proposal or (iii) enter into any such proposal agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person other similar instrument relating to an Acquisition Proposal. Subject to Sections 6.03(d) and 6.03(e), or otherwise facilitate and except with respect to any effort or attempt to make or implement an Acquisition Proposal; Excluded Party, on the No-Shop Period Start Date, (iiA) that it will the Company shall, and shall cause any of its Subsidiaries and its and their Representatives to, cease immediately cease and cause to be terminated any and all existing activities, discussions or negotiations negotiations, if any, with any parties Third Party and its Representatives conducted heretofore prior to the date hereof with respect to any Acquisition Proposal and (B) the Company shall promptly request that each such Third Party, if any, that has executed a confidentiality agreement within the 12-month period prior to the date hereof in connection with its consideration of any Acquisition Proposal return or destroy all confidential information heretofore furnished to such Third Party by or on behalf of the foregoing Company or any of its Subsidiaries. No later than one Business Day after the No-Shop Period Start Date, the Company shall notify Parent in writing of (1) the identity of each Excluded Party, (2) the material terms and each will take the necessary steps to inform the individuals or entities referred to above conditions of such Excluded Party’s Acquisition Proposal as of the obligations undertaken in this Section 7.1; No-Shop Period Start Date and (iii3) that it will notify the other party immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit whether the Board of Directors of the General Partner Company has determined in good faith, after consultation with its financial advisor and outside legal counsel, that an Acquisition Proposal received by the Company or any of RELP its Representatives from such Excluded Party prior to the No-Shop Period Start Date constitutes a Superior Proposal.
(the "Board of Directors"c) or Subject to Sections 6.03(d) and 6.03(e), the Board of Trust Managers from Directors of the Company shall not (xi) 19 furnishing information fail to make, withdraw or entering into discussions modify in a manner adverse to Parent the Company Board Recommendation (or negotiations with, any person or entity that makes recommend an unsolicited bona fide Acquisition Proposal) (any of the foregoing in this clause (i), if, and only to the extent an “Adverse Recommendation Change”; provided that, for the avoidance of doubt, none of (A) the determination by the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counselan Acquisition Proposal constitutes a Superior Proposal, (B) the disclosure by the Company of such determination or (C) the delivery by the Company of the notice required by the last sentence of Section 6.03(b) shall in and of themselves constitute an Adverse Recommendation Change), or (ii) exempt any transaction from the requirements of Section 33-841 or 33-844 of Connecticut Law.
(d) Notwithstanding anything contained in Section 6.03(b) or Section 6.03(c) to the contrary, if at any time after the No-Shop Period Start Date and prior to furnishing obtaining the Company Stockholder Approval, the Company or any of its Representatives has received a written Acquisition Proposal from any Third Party that the Board of Directors of the Company reasonably believes could lead to a Superior Proposal, then the Company, directly or indirectly through its Representatives, may (i) engage in negotiations or discussions with such Third Party and its Representatives and (ii) furnish to such Third Party or its Representatives non-public information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice relating to the other party Company or any of its Subsidiaries pursuant to an Acceptable Confidentiality Agreement; provided that the Company shall make available to Parent any material non-public information relating to the Company or its Subsidiaries that is made available to such Third Party which was not previously made available to Parent prior to or substantially concurrently with the time it is made available to such Third Party.
(e) Notwithstanding anything contained in this Agreement to the effect that it is furnishing information tocontrary, or entering into discussions withat any time prior to obtaining the Company Stockholder Approval, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for if the Board of Directors or Board of Trust Managersthe Company determines in good faith, as applicableafter consultation with outside legal counsel, that the failure to comply take such action would be inconsistent with its fiduciary duties duties, the Board of Directors of the Company may make an Adverse Recommendation Change; provided that, if the Company is making an Adverse Recommendation Change in response to limited partners any fact, event, change, development or shareholders, as applicable, imposed set of circumstances other than an Acquisition Proposal (which shall be governed by law as advised by counselSection 6.03(h)), then the Board of Directors shall not make such party keeps Adverse Recommendation Change unless the other party Company has (i) provided to Parent at least three Business Days’ prior written notice that it intends to take such action and specifying in reasonable detail the facts underlying the decision by the Board of Directors of the Company to take such action and (ii) during such three Business Day period, if requested by Parent, engaged in good faith negotiations with Parent to amend this Agreement informed in such a manner that obviates the need for such Adverse Recommendation Change.
(f) In addition, nothing contained herein shall prevent the Board of Directors of the status Company from (but not the termsi) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange 1934 Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit ; provided that any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect such action taken or statement made that relates to an Acquisition Proposal during shall not be deemed to be an Adverse Recommendation Change if the term Board of this Agreement (it being agreed that during Directors of the term of this Agreement, no party shall enter into any agreement with any person that provides for, Company reaffirms the Company Board Recommendation in such statement or in connection with such action or (ii) making any way facilitatesdisclosure to the stockholders of the Company if the Board of Directors of the Company determines in good faith, an after consultation with outside legal counsel, that the failure to take such action would be inconsistent with Applicable Law (including its fiduciary duties).
(g) From and after the No-Shop Period Start Date, (i) the Company shall notify Parent promptly (but in no event later than 36 hours) after receipt by the Company (or any of its Representatives) of any Acquisition Proposal (other than a confidentiality agreement any Acquisition Proposal received from any Excluded Party), which notice shall identify the Third Party making, and the material terms and conditions of, any such Acquisition Proposal and (ii) the Company shall keep Parent reasonably informed promptly (but in customary formno event later than 36 hours) after any material developments, discussions or negotiations regarding any Acquisition Proposal (other than any Acquisition Proposal received from any Excluded Party) and shall provide to Parent promptly (but in no event later than 36 hours) after receipt thereof copies of all correspondence and other written materials sent or provided to the Company or any of its Subsidiaries that describe any material terms or conditions of any Acquisition Proposal (other than any Acquisition Proposal received from any Excluded Party).
(h) Further, the Board of Directors of the Company shall not make an Adverse Recommendation Change in response to an Acquisition Proposal (or terminate this Agreement pursuant to Section 10.01(d)(i)), or unless (i) the Board of Directors of the Company has determined in good faith, after consultation with its financial advisor and outside legal counsel, that such Acquisition Proposal constitutes a Superior Proposal, (ii) the Company promptly notifies Parent in writing, at least three Business Days before taking such action, of the determination of the Board of Directors of the Company that such Acquisition Proposal constitutes a Superior Proposal and of its intention to take such action, attaching the most current version of the proposed agreement under which such Superior Proposal is proposed to be consummated and the identity of the Third Party making such Superior Proposal and (iii) affect the Board of Directors of the Company (A) shall have considered in good faith any revisions to this Agreement, the Financing Commitment Letters and the Limited Guaranty proposed in writing by Parent in a manner that would form a binding Contract if accepted by the Company and (B) shall have determined that such Acquisition Proposal would continue to constitute a Superior Proposal if such revisions were to be given effect (it being understood and agreed that any material amendment to the financial terms or other obligation material terms of any party such Superior Proposal shall require a new written notification from the Company and a new three Business Day period under this Section 6.03(h)).
(i) As used in this Agreement.:
Appears in 1 contract
Acquisition Proposals. Prior to the Effective Time, RELP and AIP each agree the Company agrees that:
(ia) that neither of them it nor any of their the Company Subsidiaries shall, and each of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation consolidation, sale of assets or similar transaction involving, or any purchase of involving all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party of the Company or any of its the Company Subsidiaries, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, concerning or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; ;
(iib) that it will use its best efforts not to permit any of its officers, employees, agents or financial advisors to engage in any of the activities described in Section 5.1(a);
(c) it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above in Section 5.1(b) of the obligations undertaken in this Section 7.15.1; and and
(iiid) that it will notify the other party ERP immediately if the Company receives any such inquiries or proposals are received by, any such information is requested fromproposals, or any requests for such information, or if any such negotiations or discussions are sought to be initiated or continued with, with it; provided, however, that nothing contained in this Section 7.1 5.1 shall prohibit the Company Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (xi) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, that (A) the Company Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it failure to comply with do so would create a reasonable probability of a breach of its fiduciary duties to limited partners or shareholders, as applicable, shareholders imposed by law as advised by counsellaw, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party the Company provides written notice to the other party to this Agreement ERP to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party the Company determined in good faith was required to be executed in order for the Company Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, shareholders imposed by law as advised by counsellaw), such party the Company keeps the other party to this Agreement ERP informed of the status (but not the terms) of any such discussions or negotiations; and (yii) to the extent applicable, complying with Rule 14e-2 or Rule 14d-9 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 5.1 shall (ix) permit any party the Company to terminate this Agreement (except as specifically provided in Article IX 8 hereof), (iiy) permit any party the Company to enter into any an agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party the Company shall not enter into any an agreement with any person Person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary formform executed as provided above)), ) or (iiiz) affect any other obligation of any party the Company under this Agreement; provided, however, that, subject to the provisions of Section 8.2, the Company Board may approve and recommend a Superior Acquisition Proposal and, in connection therewith, withdraw or modify its approval or recommendation of this Agreement and the Merger. As used herein, "Superior Acquisition Proposal" means a bona fide Acquisition Proposal made by a third party which a majority of the members of the Company Board determines in good faith to be more favorable to the Company's shareholders from a financial point of view than the Merger and which the Company Board determines is reasonably capable of being consummated.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Globe Business Resources Inc)
Acquisition Proposals. Prior From and after the date of this Agreement and prior to the Effective Time, RELP and AIP each agree except as provided below, the Company agrees (ia) that neither of them the Company nor any of their its Subsidiaries shall, and each of them the Company shall direct and use its reasonable best efforts to cause its respective officers, General Partnerdirectors, limited partners, Trust Managers, employees, agents, affiliates employees and authorized agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, ) not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholdersstockholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party the Company or any of its Subsidiaries, other than the transactions contemplated by this Agreement Subsidiaries (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (iib) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.16.2; and (iiic) that it will notify the other party Parent immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it, but need not disclose the identity of the other party or the terms of its proposals; provided, however, that nothing contained in this Section 7.1 6.2 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers Company from (xi) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposalproposal in writing, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) not subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicablefinancing condition, to comply with its fiduciary duties acquire the Company pursuant to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreement.merger,
Appears in 1 contract
Sources: Merger Agreement (Humana Inc)
Acquisition Proposals. Prior to the Effective Time, RELP and AIP each agree (i) that neither of them nor any of their Subsidiaries shall, and each of them The Corporation shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, not to, initiate, solicit or encouragenot, directly or indirectly, any inquiries take (nor shall the Corporation authorize or the making permit its officers, directors, employees, representatives, investment bankers, attorneys, accountants or implementation of any proposal other agents or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and (iii) that it will notify the other party immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicableaffiliates, to comply with its fiduciary duties take) any action to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit encourage, solicit or initiate the submission of any party to terminate this Agreement Acquisition Proposal (except as specifically provided in Article IX hereofhereinafter defined), (ii) permit any party to enter into any agreement with respect to an any Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect participate in any way in discussions or negotiations with, or furnish any information to, any person in connection with, or take any other obligation action to facilitate any inquiries or the making of any party proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal. The Corporation will promptly communicate to Acquiror any solicitation by the Corporation and the terms of any proposal or inquiry, including the identity of the person and its affiliates making the same, that it may receive in respect of any such transaction, or of any such information requested from it or of any such negotiations or discussions being sought to be initiated with it. "Acquisition Proposal" shall mean any proposed (A) merger, consolidation or similar transaction involving the Corporation, (B) sale, lease or other disposition, directly or indirectly, by merger, consolidation, share exchange or otherwise of assets of the Corporation (including, but not limited to, letters of intent to which the Corporation is a party) representing 30% or more of the assets of the Corporation, (C) 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 20% or more of the voting power of the Corporation or (D) transaction in which any person shall acquire beneficial ownership (as such term is defined in Rule 13d-3 under this Agreementthe Exchange Act), or the right to acquire beneficial ownership or any "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 20% or more of the outstanding Shares.
Appears in 1 contract
Acquisition Proposals. Prior to the Effective Time, RELP and AIP each agree (a) The Company agrees that (i) that neither of them nor any of their Subsidiaries shallit and its officers, directors and each of them employees shall direct not, (ii) its subsidiaries and its subsidiaries’ officers, directors and employees shall not and (iii) it shall use its reasonable best efforts to cause ensure that its respective officers, General Partner, limited partners, Trust Managers, employees, and its subsidiaries’ agents, affiliates advisors and representatives (includingcollectively, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, “Representatives”) shall not to, initiate, solicit or encourage, (A) directly or indirectly, initiate, solicit, participate in, knowingly encourage or facilitate or provide any information to any Person (other than Parent or Merger Sub or any of their respective Representatives) with respect to any inquiries or the making or implementation of any proposal or offer with respect to a tender offer or exchange offer with respect to 20% or more of the outstanding shares of Common Stock or of any outstanding class of equity of any of the Company’s significant subsidiaries (includingas such term is defined for purposes of Regulation S-X under the Securities Act of 1933, without limitationprovided, however, that any reference to 10% in such definition shall be deemed to be 20% for purposes of Section 6.5 and 50% for purposes of Section 8.2) (“Significant Subsidiaries”), a merger, consolidation or other business combination involving the Company or any of the Company’s Significant Subsidiaries, or any proposal or offer to its shareholders) with respect to acquire in any manner an equity interest representing a merger, acquisition, tender offer, exchange offer, consolidation 20% or similar transaction involving, greater economic or any purchase of all or any significant portion of voting interest in the assets or any equity securities (or any debt securities convertible into equity securities) of, such party Company or any of the Company’s Significant Subsidiaries, or 20% or more of the consolidated assets of the Company and its Subsidiariessubsidiaries, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "“Acquisition Proposal"”) or (B) directly or indirectly, engage in any negotiations concerningor discussions with, or provide access to its properties, books and records or any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal.
(b) Notwithstanding the foregoing, nothing contained in any provision of this Agreement shall prevent the Company or otherwise facilitate its Board of Directors from (and the Company shall not be in breach of any effort other provision of this Agreement as a result of) (i) complying with Rule 14d-9 and Rule 14e-2(a) promulgated under the Exchange Act or attempt from making any legally required disclosure with regard to make or implement an Acquisition Proposal; Proposal (provided, that compliance with such rules shall not limit or modify the effect any action taken pursuant to such rules may have under any other provision of this Agreement), (ii) prior to the adoption of this Agreement by the Company’s stockholders in accordance with this Agreement, providing access to its properties, books and records and providing information or data in response to a request therefor by a person who has made a bona fide written Acquisition Proposal to the Company’s Board of Directors that was not initiated or knowingly encouraged or solicited by the Company or any of its Representatives on or after the date hereof (an “Unsolicited Acquisition Proposal”), if the Board of Directors receives from the person so requesting such information an executed confidentiality agreement on terms no less favorable to the Company than those contained in the Confidentiality Agreement (except for changes specifically necessary in order for the Company to be able to comply with its disclosure obligations to Parent under Section 6.5(c)), (iii) prior to the adoption of this Agreement by the Company’s stockholders in accordance with this Agreement, engaging in any negotiations or discussions with any person who has made an Unsolicited Acquisition Proposal, or (iv) prior to the adoption of this Agreement by the Company’s stockholders in accordance with this Agreement, in light of a bona fide written Acquisition Proposal that has not been withdrawn, (A) withdrawing, modifying or changing in any adverse manner its approval or recommendation of this Agreement or (B) recommending an Unsolicited Acquisition Proposal, if and only to the extent that in connection with the foregoing clauses (ii), (iii) and (iv), (x) the Board of Directors of the Company shall have determined in good faith, after consultation with its outside legal counsel and financial advisors that such action is required in order for the Board of Directors to comply with its fiduciary duties under applicable law and (y) the Company has complied in all material respects with its other obligations set forth in this Section 6.5 and (z) in the case of clause (iv), at least four business days prior to taking any action contemplated thereby, the Company has provided written notice to Parent of its intention to take such action, setting forth the most current material terms of any Acquisition Proposal that is the basis of such proposed action.
(c) The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties persons conducted heretofore with respect to any Acquisition Proposal. The Company shall also promptly (but in any case within 24 hours) notify Parent in writing of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above receipt of the obligations undertaken in this Section 7.1; and (iii) that it will notify the other party immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) any Acquisition Proposal and any material modification of or material amendment to any Acquisition Proposal after the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counseldate hereof, (B) prior any inquiry from any Person relating to furnishing such information to, a possible Acquisition Proposal or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject any request for information relating to the Company or any confidentiality agreement with of its subsidiaries, or for access to the properties, books or records of the Company or any of its subsidiaries, in each case by any person that the Company has reason to believe may be considering making, or that has made, an Acquisition Proposal or an inquiry that such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard indicates relates to an Acquisition Proposal. Nothing in this Section 7.1 Such notice shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an include the identity of the person making such Acquisition Proposal during or inquiry, all material terms and conditions thereof (including a copy thereof if in writing and any related material documentation and correspondence) and any material change to or modification of such proposed terms and conditions. The Company shall, on a reasonably current basis, also keep Parent informed of the term status and material terms of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreementsuch inquiries, requests, discussions and negotiations, including by providing a copy of all material documentation or correspondence relating thereto.
Appears in 1 contract
Acquisition Proposals. Prior to the Effective Time, RELP and AIP each agree Company agrees (ia) that neither of them it nor any of their its Subsidiaries shall, and each of them it shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managersdirectors, employees, agents, affiliates agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, ) not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholdersStockholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party the Company or any of its Subsidiaries, other than the transactions contemplated by this Agreement Subsidiaries (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (iib) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.16.9; and (iiic) that it will notify the other party Purchaser immediately if any such inquiries or proposals are received by, any such information is requested received from, or any such negotiations or discussions are sought to be initiated or continued with, it; providedPROVIDED, howeverHOWEVER, that nothing contained in this Section 7.1 6.9 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers Company from (xi) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposalproposal to acquire the Company pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of the assets, business combination or other similar transaction, if, and only to the extent that, that (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it the Board of Directors to comply with its fiduciary duties to limited partners or shareholders, as applicable, stockholders imposed by law as advised by counsellaw, (B) the Board of Directors has received a legal opinion from its counsel that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (C) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party Company provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity, and (CD) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, stockholders imposed by law as advised by counsellaw), such party Company keeps the other party to this Agreement Purchaser informed of the status (but not the terms) of any such discussions or negotiations; and (yii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 6.9 shall (ix) permit any party to terminate this Agreement (except as specifically provided in Article IX Section 10 hereof), (iiy) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iiiz) affect any other obligation of any party under this Agreement.
Appears in 1 contract
Acquisition Proposals. Prior to the Effective Time, RELP and AIP each agree (i) Franklin agrees that neither of them nor any of their Subsidiaries shallit shall not, and each of them that it shall direct and use its reasonable best efforts to cause its respective directors, officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, not to, initiate, solicit or encourage, directly or indirectly, initiate, solicit, encourage or otherwise facilitate any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisitionreorganization, tender offer, exchange offershare exchange, consolidation or similar transaction involvinginvolving Franklin, or any purchase of all or any significant portion substantially all of the assets of Franklin or any more than 10% of the outstanding equity securities (or any debt securities convertible into equity securities) of, such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement Franklin (any such proposal or offer being hereinafter referred to as an "“Acquisition Proposal") ”). Franklin further agrees that it shall not, and that it shall direct and use its reasonable best efforts to cause its directors, officers, employees, agents and representatives not to, directly or indirectly, engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent Franklin or the Franklin Board from (A) complying with its disclosure obligations under federal or state law; (B) providing information in response to a request therefore by a Person who has made an unsolicited bona fide written Acquisition Proposal if the Franklin Board receives from the Person so requesting such information an executed confidentiality agreement; (C) engaging in any negotiations or discussions with any person who has made an unsolicited bona fide written Acquisition Proposal or (D) recommending such an Acquisition Proposal to the stockholders of Franklin, if and only to the extent that, in each such case referred to in clause (B), (C) or (D) above, (i) the Franklin Board determines in good faith (after receipt of a written opinion of outside legal counsel) that such action would be required in order for its directors to comply with their respective fiduciary duties under applicable law and (ii) the Franklin Board determines in good faith (after receipt of a written opinion of its financial advisor) that such Acquisition Proposal, if accepted, is reasonably likely to be consummated, 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 Franklin’s stockholders from a financial point of view than the Merger. An Acquisition Proposal which is received and considered by the Franklin in compliance with this Section 6.8 hereof and which meets the requirements set forth in clause (D) of the preceding sentence is herein referred to as a “Superior Proposal.” Franklin agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and (iii) Acquisition Proposals. Franklin agrees that it will notify the other party immediately First Place if any such inquiries inquiries, proposals or proposals offers are received by, any such information is requested from, or any such discussions or negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board Franklin or any of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreementrepresentatives.
Appears in 1 contract
Acquisition Proposals. Prior to the Effective Time(a) The Company agrees that, RELP and AIP each agree except as otherwise permitted in this Section 6.7, (i) that neither of them nor any of their it and its officers and directors will not, (ii) the Company Subsidiaries shalland the Company Subsidiaries' officers and directors will not, and each of them shall direct (iii) its and use its best efforts to cause its respective officersthe Company Subsidiaries' investment bankers, General Partnerfinancial advisors, limited partnersattorneys, Trust Managersaccountants, employees, consultants or other agents, affiliates and advisors or representatives (includingcollectively, without limitation"Representatives") will not, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, not to, initiate, solicit or encourage, (A) directly or indirectly, initiate, solicit, cause, encourage or otherwise knowingly facilitate any inquiries or the making making, submission or implementation reaffirmation of any proposal or offer (includingwith respect to a tender offer or exchange offer, without limitationproxy solicitation, merger, reorganization, share exchange, recapitalization, liquidation, dissolution, consolidation, business combination or other similar transaction involving the Company and/or the Company Subsidiaries or any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation acquire in any manner an equity or similar transaction involvingvoting interest in the Company, or any purchase the assets, securities or other ownership interests of all or in the Company or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) ofCompany Subsidiary, such party or any of its Subsidiaries, in each case other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"), or (B) directly or indirectly, engage in any negotiations or discussions concerning, or provide access to its properties, books and records or any confidential information or data to, any Person relating to, or have any discussions withthat may reasonably be expected to lead to, any person relating to an Acquisition Proposal. The Company will promptly take the steps necessary to inform the Persons set forth in clauses (i), or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any (iii) of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above sentence of the obligations undertaken in this Section 7.1; 6.7, and (iii) the Company agrees that it will notify the other party immediately if be responsible for any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in breach of this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreement.6.7
Appears in 1 contract
Acquisition Proposals. Prior to ASC and the Effective Time, RELP and AIP each Shareholders agree that from the date of this Agreement through the expiration of the Exercise Period (ia) that neither of them the Shareholders, nor ASC, nor any of their Subsidiaries its respective officers and directors shall, and each of them ASC and the Shareholders shall direct and use its their best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, ASC's employees, agents, affiliates agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of of, all or any significant portion of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement ASC (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information Confidential Information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (iib) that it the Shareholders and ASC will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above in the first sentence hereof of the obligations undertaken in this Section 7.16.3; and (iiic) that it ASC and the ----------- Shareholders will notify the other party PHC-SUB immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") ASC or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this AgreementShareholders .
Appears in 1 contract
Acquisition Proposals. Prior to the Effective TimeClosing Date, RELP Drever, AOFII and AIP AOF each agree (ia) that neither none of them nor any of their Subsidiaries affiliates shall, and each of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managersdirectors, employees, agents, affiliates and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, affiliates) not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or any purchase of all or any significant portion (which, for purposes of this Section 6.1 shall mean Partnership Properties having an aggregate Property Value of 20% or more of the aggregate Property Value of all Partnership Properties) of the assets or any equity securities (or any debt securities convertible into equity securities) of, such party entity, any Partnership or any of its Subsidiariestheir affiliates, other than the transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person Person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (iib) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.16.1; and (iiic) that it will notify the other party Walden immediately if any such ▇▇▇ ▇uch inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 6.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers Drever from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity Person that makes an unsolicited bona fide Superior Acquisition ProposalProposal (as defined below), if, and only to the extent that, (Ai) the Board Boards of Directors or Board of Trust ManagersDrever, as applicable, determines AOFII and/or AOF determine in good faith that such action is required for it Drever, AOFII or AOF, as applicable, to comply with its fiduciary duties to limited the partners of the Partnerships under, or shareholdersotherwise violate, as applicable, imposed by applicable law as advised by counsel, (Bii) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entityPerson, such party Drever provides written notice to the other party to this Agreement Walden to the effect that it is ▇▇▇▇ Drever, AOFII and/or AOF are furnishing information to, or entering into discussions with, such person Person except to the extent that the Boards of Directors of Drever, AOFII and/or AOF, as applicable, determine in good faith that any such action would violate such Boards' fiduciary duties under, or entityotherwise violate, applicable law, and (Ciii) subject to any confidentiality agreement with such person or entity Person (which such party Drever determined in good faith was required to be executed in order for the Board of Directors or Board of Trust ManagersDrever, as applicable, AOFII and/or AOF to comply with its fiduciary duties to limited the partners or shareholders, as applicable, of the Partnership imposed by law as advised by counsel), such party Drever keeps the other party to this Agreement informed Walden reasonabl▇ ▇▇▇▇rmed of the status (but not the terms) of any such discussions or negotiations; and (y) negotiations except to the extent that the Boards of Directors of Drever, AOFII and/or AOF, as applicable, complying with Rule 14e-2 promulgated under determine in good faith that any such action would violate such Boards' fiduciary duties under, or otherwise violate, applicable law. A "Superior Acquisition Proposal" means a bona fide Acquisition Proposal made by a third party and which a majority of the members of the Board of Directors of Drever, AOFII and/or AOF, as applicable, determines in good faith (a) to be more favorable to the Interestholders than the Exchange Act with regard to an Acquisition ProposalOffer and (b) is reasonably capable of being consummated. Nothing in this Section 7.1 6.1 shall (ix) permit any party to terminate this Agreement (except as specifically provided for in Article IX 8 hereof), (iiy) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person Person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iiiz) affect any other obligation of any party under this Agreement. 2 Conduct of Business.
Appears in 1 contract
Sources: Exchange Agreement (Walden Residential Properties Inc)
Acquisition Proposals. Prior to Until the Effective TimeTime or earlier termination of this Agreement pursuant to Article IX and except as provided in Section 5.2, RELP and AIP each agree (i) that neither of them Parent nor the Company will, nor will they permit any of their Subsidiaries shallto, and each nor will they authorize or permit any officer, director or employee of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates and representatives (including, without limitation, or any investment banker, attorney attorney, accountant or accountant retained by it other advisor or representative of, Parent or the Company, respectively, or any of its Subsidiaries), as applicable, not their Subsidiaries to, initiate, solicit or encourage, directly or indirectly, (i) solicit, initiate or encourage the submission of any Acquisition Proposal or (ii) participate in any discussions or negotiations regarding, or furnish to any Person any information in respect of, or take any other action to facilitate, any Acquisition Proposal or any inquiries or the making or implementation of any proposal that constitutes, or offer (including, without limitationmay reasonably be expected to lead to, any Acquisition Proposal. "Acquisition Proposal" means an inquiry, offer or proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, or regarding any purchase of all or any significant portion of the assets or any equity securities following (or any debt securities convertible into equity securities) of, such party or any of its Subsidiaries, other than the transactions contemplated by this Agreement Agreement) involving Parent, Merger Sub, the Company or any of their respective Subsidiaries: (w) any such proposal merger, consolidation, share exchange, recapitalization, business combination or offer being hereinafter referred to as an "Acquisition Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposalother similar transaction; (iix) that it will immediately cease any sale, lease, exchange, mortgage, pledge, transfer or other disposition of all or substantially all the assets of such party and cause its Subsidiaries, taken as a whole, in a single transaction or series of related transactions; (y) any tender offer or exchange offer for 20% or more of such party's outstanding shares or the filing of a registration statement under the Securities Act in connection therewith; or (z) any public announcement of a proposal, plan or intention to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to do any of the foregoing and each will take the necessary steps or any agreement to inform the individuals or entities referred to above engage in any of the obligations undertaken in this Section 7.1; and (iii) that it will notify the other party immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreementforegoing.
Appears in 1 contract
Acquisition Proposals. Prior Each of the Seller and the Foreign Sellers agrees that, prior to the Effective Timeearlier of the Closing and the termination of this Agreement pursuant to Article VIII herein, RELP and AIP each agree (i) that neither of them it nor any of its respective Subsidiaries or Affiliates, nor any of the officers and directors of it or any of their respective Subsidiaries or Affiliates shall, and each of them that it shall direct and use its reasonable best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates it and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, ’ and Affiliates’ employees and Representatives not to, initiate, solicit or encourage, directly or indirectly, initiate, solicit, or encourage any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its shareholders) with respect to (i) a merger, acquisitionreorganization, tender offer, exchange offershare exchange, consolidation or similar transaction involving, or any purchase of all or any significant portion of the material assets or any equity securities (or any debt securities convertible into equity securities) Equity Interests of, such party CodeGear or any (ii) the acquisition of its Subsidiariesa material amount of the Acquired Foreign Assets or Transferred Assets by way of a purchase, other than the transactions contemplated by this Agreement joint venture or otherwise (any such proposal or offer being hereinafter referred to as an "“Acquisition Proposal") ”). Each of the Seller and the Foreign Sellers further agrees that neither it nor any of its Subsidiaries or Affiliates nor any of the officers and directors of it or its Subsidiaries or Affiliates shall, and that it shall direct and use its reasonable best efforts to cause its and its Subsidiaries’ employees, agents and Representatives not to, directly or indirectly, engage in any discussions or negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person Person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) . Each of the Seller and the Foreign Sellers agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and (iii) that it will promptly notify the other party immediately Buyer if any such inquiries proposals or proposals offers whether delivered in writing or orally, formally or informally, are received by, any such information is requested from, or any such discussions or negotiations or discussions are sought to be initiated or continued with, it; provided, however, that nothing contained in this Section 7.1 shall prohibit the Board of Directors any of the General Partner of RELP (the "Board of Directors") Seller Entities or the Board of Trust Managers from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to an Acquisition Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, no party shall enter into any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iii) affect any other obligation of any party under this Agreementtheir Representatives.
Appears in 1 contract
Acquisition Proposals. Prior (a) Notwithstanding anything to the Effective contrary contained in this Agreement, during the period beginning on the date of this Agreement and continuing until 11:59 p.m. (Atlanta time) on August 15, 2011 (the “No-Shop Period Start Time”), RELP the Company and AIP each agree (i) that neither of them nor any of its Subsidiaries and their Subsidiaries shallrespective directors, and each of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agentsinvestment bankers, affiliates attorneys, accountants and other advisors or representatives (includingsuch directors, without limitationofficers, any employees, investment bankerbankers, attorney attorneys, accountants and other advisors or accountant retained by it or any of its Subsidiaries)representatives, as applicablecollectively, not “Representatives”) shall have the right to, initiate, solicit or encourage, directly or indirectly, (i) initiate, solicit and encourage, whether publicly or otherwise, any Acquisition Proposals (or inquiries, proposals or offers or other efforts or attempts that may reasonably be expected to lead to an Acquisition Proposal) or the making of any proposals or offers that constitute Acquisition Proposals, including by way of (A) providing access to non-public information or data to any Persons pursuant to confidentiality agreements containing confidentiality terms that are no less favorable to the Company than those contained in the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”), and (B) affording to any Persons access to the business, properties, assets and personnel of the Company and its Subsidiaries, provided, however, with respect to clauses (A) and (B), to the extent that the Company provides any material non-public information or access to any such Person on or after the date hereof, the Company shall promptly (and in any event within forty-eight (48) hours) provide to Parent and its Representatives any material non-public information or other access provided to such Person which was not previously provided to Parent or its Representatives, and (ii) engage or enter into, continue or otherwise participate in any discussions or negotiations with any Persons or groups of Persons with respect to any Acquisition Proposals (or inquiries, proposals or offers or other efforts or attempts that may reasonably be expected to lead to an Acquisition Proposal) and cooperate with or assist and participate in and facilitate any such inquiries, proposals, discussions and negotiations and any effort or attempt to make any Acquisition Proposals (or inquiries, proposals or offers or other efforts or attempts that may reasonably be expected to lead to an Acquisition Proposal).
(b) Except as permitted by this Section 7.2 and except as may relate to any Exempted Person, from the No-Shop Period Start Time until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article IX, the Company and its Subsidiaries shall, and the Company shall cause its Representatives to, not (i) initiate, solicit or knowingly encourage any inquiries or the making or implementation of any proposal or offer that constitutes an Acquisition Proposal (includingor inquiries, without limitationproposals or offers that would reasonably be expected to lead to an Acquisition Proposal), (ii) participate in any proposal discussions or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involvingnegotiations regarding an Acquisition Proposal, or provide any purchase of all non-public information or data to any significant portion of Person relating to the assets or any equity securities (or any debt securities convertible into equity securities) of, such party Company or any of its Subsidiaries, other or afford to any Person access to the business, properties, assets or personnel of the Company or any of its Subsidiaries in connection with an Acquisition Proposal, or (iii) enter into any Alternative Acquisition Agreement. For the avoidance of doubt, notwithstanding the commencement of the No-Shop Period Start Time, the Company may continue to engage in the activities described in Section 7.2(a) only with respect to Persons who are Exempted Person, including with respect to any amended proposal submitted by any Exempted Person following the No-Shop Period Start Time and prior to the earlier of the Offer Closing and the time the Company Requisite Vote is obtained, and the restrictions in Section 7.2(c) and clauses (i) and (ii) of the foregoing sentence in this Section 7.2(b) shall not apply with respect thereto; provided that the provisions of Section 7.2(d) shall apply to an Acquisition Proposal of any Exempted Person. No later than the transactions contemplated second (2nd) Business Day following the No-Shop Period Start Time (and within two (2) Business Days of the Company’s receipt of any subsequent Acquisition Proposal), the Company shall provide Parent with the identity of any Person who has made or is making an Acquisition Proposal, an unredacted copy of the Acquisition Proposal, the relevant proposed transaction agreements and a copy of any financing commitments (including fee letters redacted to comply with any confidentiality provisions) relating thereto, and will keep Parent reasonably and promptly informed as to the status of any material developments, modifications, discussions and negotiations with such Person.
(c) Notwithstanding anything to the contrary contained in Section 7.2(b) or any other provisions of this Agreement, at any time following the No-Shop Period Start Time and prior to the earlier to occur of the Offer Closing and the time the Company Requisite Vote is obtained, if the Company receives a written Acquisition Proposal from any Person (including from an Exempted Person or from any Person with which the Company previously had discussions or negotiations prior to the No-Shop Period Start Time and ceased such discussions and negotiations at the No-Shop Period Start Time in accordance with Section 7.2(b)), (i) the Company and its Representatives may contact such Person to clarify the terms and conditions thereof, (ii) the Company and its Representatives may provide information in response to a request therefor by such Person if the Company receives from such Person (or has received from such Person) an executed Acceptable Confidentiality Agreement, provided, however, that any material non-public information provided to such Person that has not previously been provided to Parent shall be provided to Parent and its Representatives as promptly as reasonably practicable (and in no event later than forty-eight (48) hours) after it is provided to such Person, and (iii) the Company and its Representatives may engage or participate in any discussions or negotiations with such Person with respect to an Acquisition Proposal, in the case of clauses (ii) and (iii), if and to the extent that prior to taking any action the Company Board of Directors determines in good faith based on the information then available and after consultation with its financial advisors and outside legal counsel that such Acquisition Proposal either constitutes a Superior Proposal or could reasonably be expected to lead to a Superior Proposal.
(d) Except as set forth in this Agreement Section 7.2(d), the Company Board of Directors shall not (i) withhold, withdraw, qualify or modify or publicly propose to withdraw, qualify or modify, in a manner adverse to Parent, the Company Recommendation with respect to the Offer or the Merger; (ii) fail to make the Company Recommendation or fail to include such Company Recommendation in the Proxy Statement or in the Schedule 14D-9; (iii) after the No-Shop Period Start Time, fail to publicly reaffirm the Company Recommendation in writing as promptly as practicable, and in any event within four (4) Business Days after Parent requests such affirmation with respect to an Acquisition Proposal that has been publicly announced; (iv) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal made or received after the date hereof (any such proposal of the foregoing, a “Change of Recommendation”), or offer being hereinafter referred (v) cause or permit the Company to as enter into any Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, prior to the earlier of the Offer Closing and the time the Company Requisite Vote is obtained, the Company Board of Directors may, (x) if an "event, fact, development, circumstance or occurrence (but specifically excluding any Acquisition Proposal") that affects the business, assets or engage in any negotiations concerningoperations of the Company or its Subsidiaries that was not known to the Company as of the date hereof becomes known by the Company Board of Directors after the date hereof, effect a Change of Recommendation, or provide (y) if the Company receives an Acquisition Proposal that the Company Board of Directors concludes in good faith after consultation with its financial advisors and outside legal counsel, constitutes a Superior Proposal, (A) effect a Change of Recommendation, (B) approve or recommend such Superior Proposal or (C) cause or permit the Company to enter into any confidential information acquisition agreement, merger agreement or data tosimilar definitive agreement, letter of intent or have agreement in principle with respect thereto or any discussions with, any person other agreement relating to an Acquisition Proposal, other than an Acceptable Confidentiality Agreement (each, an “Alternative Acquisition Agreement”) and terminate this Agreement or otherwise facilitate any effort take action pursuant to Section 9.1(c), and in the case of either clause (x) or attempt (y), if, and only if:
(i) the Company Board of Directors determines in good faith, after consultation with its financial advisors and outside legal counsel, that failure to make or implement an Acquisition Proposaldo so would be inconsistent with its fiduciary duties under applicable Law; and
(ii) the Company shall have provided prior written notice to Parent and Merger Sub, at least four (4) Business Days in advance, that it will immediately cease (A) effect a Change of Recommendation, (B) approve or recommend any Superior Proposal or (C) cause the Company to enter into any Alternative Acquisition Agreement and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in terminate this Section 7.1; and (iii) that it will notify the other party immediately if any such inquiries or proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, itAgreement; provided, however, that nothing the Company Board of Directors shall not and shall cause the Company not to take any such action unless: (1) the Company has given Parent notice, in writing, of (x) the basis for the Change of Recommendation or termination and, (y) with respect to the Superior Proposal, the identity of the party making such Superior Proposal, an unredacted copy of the Acquisition Proposal, the relevant proposed transaction agreements and a copy of any financing commitments (including fee letters redacted to comply with any confidentiality provisions) relating thereto, (2) the Company has negotiated, and has caused its Representatives to negotiate, in good faith with Parent and Merger Sub for such four (4) Business Day notice period (to the extent Parent wishes to negotiate) to enable Parent to propose in writing a binding offer to effect revisions to the terms of this Agreement, the Commitment Letters and the Guaranty such that it would cause such Superior Proposal to no longer constitute a Superior Proposal, (3) following the end of such notice period, the Company Board of Directors shall have considered in good faith any proposed revisions to this Agreement, the Commitment Letters and the Guaranty proposed by Parent, and shall have determined that, as applicable, (x) the Superior Proposal would continue to constitute a Superior Proposal or (y) failure to effect a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law, and the Company shall have informed Parent of the basis of such determination, and (4) in the event of any material change to the terms of such Superior Proposal, the Company shall, in each case, have delivered to Parent an additional notice consistent with that described above and the notice and negotiation period shall have recommenced, except that the notice and negotiation period shall be at least one (1) Business Day (rather than the three (3) Business Days otherwise contemplated above); provided, further, that the Company has complied in all material respects with its obligations under this Section 7.2.
(e) Nothing contained in this Section 7.1 7.2 shall be deemed to prohibit the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers Company from (x) 19 furnishing information to or entering into discussions or negotiations with, any person or entity that makes an unsolicited bona fide Acquisition Proposal, if, and only to the extent that, (A) the Board of Directors or Board of Trust Managers, as applicable, determines in good faith that such action is required for it to comply complying with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality agreement with such person or entity (which such party determined in good faith was required to be executed in order for the Board of Directors or Board of Trust Managers, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated disclosure obligations under the Exchange Act applicable Laws with regard to an Acquisition Proposal. Nothing Proposal (including taking and disclosing to its shareholders any position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012 of Regulation M-A under the Exchange Act), and notwithstanding anything contained in this Agreement, it is understood that a mere “stop, look and listen” disclosure in compliance with Rule 14d-9(f) of the Exchange Act shall not violate Section 7.1 shall 7.2(b) or constitute a Change of Recommendation.
(if) permit From and after the date hereof, the Company agrees that it will promptly (and in any event within forty-eight (48) hours) notify Parent of the identity of any party to terminate this Agreement (except as specifically provided in Article IX hereof), (ii) permit any party to enter into any agreement with respect to making an Acquisition Proposal during and provide Parent with an unredacted copy of the term Acquisition Proposal, the relevant proposed transaction agreements and, a copy of this Agreement any financing commitments (it being agreed that during the term of this Agreement, no party shall enter into any agreement including fee letters redacted to comply with any person that provides for, or in any way facilitates, an Acquisition Proposal (other than a confidentiality agreement in customary form)), or (iiiprovisions) affect any other obligation relating thereto and thereafter shall keep Parent reasonably and promptly informed as to the status of any party under this Agreementmaterial changes to the terms thereof.
Appears in 1 contract
Sources: Merger Agreement (Immucor Inc)
Acquisition Proposals. Prior NON-SOLICITATION
7.1 Subject to the Effective Timesections 7.4, RELP 7.6, 7.8 and AIP each agree (i) that neither of them nor any of their Subsidiaries shall7.9, Pacifica shall not, and each of them shall direct and use its best efforts to cause its respective officers, General Partner, limited partners, Trust Managers, employees, agents, affiliates and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries), as applicable, Subsidiaries not to, initiate, solicit or encourage, directly or indirectly, through any officer, director, employee, agent, representative or advisor:
(a) solicit, initiate, invite or knowingly encourage (including by way of providing non-public information or entering into any agreement, arrangement or understanding) the initiation of any inquiries or the making proposals regarding an Acquisition Proposal from any person;
(b) engage in any discussions or implementation negotiations relating to any Acquisition Proposal; or
(c) accept, approve, recommend or enter into an agreement, arrangement or understanding with any person relating to or contemplating any Acquisition Proposal. NOTICE OF ACQUISITION PROPOSAL
7.2 Forthwith, and in any event within one business day, after becoming aware of any proposal of the following matters that occur on or offer after the date of this Agreement, Pacifica shall notify Norske Canada of:
(including, without limitation, a) any proposal or offer to its shareholders) with respect to a merger, acquisition, tender offer, exchange offer, consolidation or similar transaction involving, written Acquisition Proposal or any purchase of all other bona fide Acquisition Proposal;
(b) any amendment to any written Acquisition Proposal or any significant portion of the assets or other bona fide Acquisition Proposal; or
(c) any equity securities (or any debt securities convertible into equity securities) of, such party request for non-public information relating to Pacifica or any of its Subsidiaries, other than the transactions contemplated by this Agreement (respective Subsidiaries in connection with any such proposal or offer being hereinafter referred Acquisition Proposal required to as an "Acquisition Proposal"be notified under section 7.2(a) or engage in any negotiations concerning(b) or for access to the properties, books or provide any confidential information or data to, or have any discussions with, any person relating to an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal; (ii) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any records of the foregoing and each will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 7.1; and (iii) that it will notify the other party immediately if any such inquiries or proposals are received by, any such information is requested fromPacifica, or any such negotiations of its Subsidiaries by any person whom Pacifica or discussions are sought any of its Subsidiaries knows or reasonably believes is considering making, or has made, any Acquisition Proposal required to be initiated notified under section 7.2(a) or continued with(b).
7.3 Notice given under section 7.2 shall include, itto the extent known to Pacifica, a description of the material terms and conditions of any proposal and such details of the proposal, amendment, request or contact as Norske Canada may reasonably request, including the identity of the person directly or indirectly making or ultimately directing such proposal, amendment, request or contact. ACQUISITION PROPOSALS
7.4 At any time prior to the time that the Pacifica Shareholders pass the Pacifica Arrangement Resolution, neither section 7.1 nor any other provision of this Agreement shall prevent the board of directors of Pacifica from considering, participating in any discussions or negotiations, or entering into a confidentiality agreement pursuant to section 7.6 in respect of an unsolicited bona fide written Acquisition Proposal that:
(a) did not result from a breach of section 7.1;
(b) relates to the acquisition, directly or indirectly, of more than 50% of the book value on a consolidated basis of the total assets of Pacifica or more than 50% of the outstanding Pacifica Shares, whether by merger, amalgamation, arrangement, takeover bid, sale of assets or otherwise; and
(c) the board of directors of Pacifica, after consultation with financial advisors and outside counsel, determines is reasonably likely to result in a Superior Proposal; provided, however, that nothing contained prior to taking such action, the board of directors of Pacifica has received advice of outside counsel that it is appropriate that the board of directors of Pacifica take such action in order to discharge properly its fiduciary duties.
7.5 From the date of this Section 7.1 Agreement, Pacifica shall:
(a) not release any third party from any confidentiality agreement with Pacifica;
(b) promptly request the return or destruction of all non-public information provided to any third parties who have entered into a confidentiality agreement with Pacifica relating to a potential Acquisition Proposal pursuant to the terms of that confidentiality agreement and shall prohibit use all reasonable efforts to ensure that such requests are honoured; and
(c) not release any third party from any standstill agreement to which such third party is a party, unless the Board of Directors of the General Partner of RELP (the "Board of Directors") or the Board of Trust Managers third party has made a Superior Proposal.
7.6 If Pacifica receives a request for material non-public information from (x) 19 furnishing information to or entering into discussions or negotiations with, any a person or entity that makes who proposes an unsolicited bona fide written Acquisition Proposal and Pacifica is permitted under section 7.4 to negotiate the terms of that Acquisition Proposal, then Pacifica may, subject to the execution of a confidentiality agreement containing terms no more favourable to the person proposing the Acquisition Proposal than those set out in the Confidentiality Agreement, provide such person with access to information regarding Pacifica, provided that Pacifica sends a copy of that confidentiality agreement to Norske Canada immediately upon its execution and Norske Canada is provided with a list of or copies of the information provided to the person making an Acquisition Proposal and immediately provided with access to similar information to which that person was provided.
7.7 Subject to Pacifica's right under sections 7.8, 7.9, 8.3(e) and 9.1(a) to concurrently pay the Norske Canada Break fee, terminate this Agreement and accept or recommend a Superior Proposal, if a bona fide Acquisition Proposal is announced, proposed, offered or made, or otherwise disclosed to, Pacifica or the Pacifica Shareholders by a person other than Norske Canada or any of its Subsidiaries prior to the date that the Pacifica Meeting is scheduled to be held and that Acquisition Proposal is not withdrawn or has not expired (or, in the case of an Acquisition Proposal that has been announced or otherwise disclosed to the Pacifica Shareholders, the withdrawal of that Acquisition Proposal has not been announced) at least three business days prior to the date that the Pacifica Meeting is scheduled to be held, then:
(a) Pacifica may, if it so chooses, delay or adjourn the Pacifica Meeting for a period of time sufficient to allow Pacifica to respond to the Acquisition Proposal in the manner contemplated by this article 7; and
(b) if Pacifica has not, three business days prior to the date that the Pacifica Meeting is scheduled to be held, publicly announced that it continues to support the Pacifica Arrangement and continues to recommend that Pacifica Shareholders vote in favour of the Pacifica Arrangement Resolution, then Pacifica shall, if requested in writing by Norske Canada prior to the time of the Pacifica Meeting, delay or adjourn the Pacifica Meeting for five business days. This section 7.7 shall apply to the Pacifica Meeting as delayed or adjourned from time to time pursuant to this section 7.7 or for any other reason, provided that the Pacifica Meeting shall in any event be held at least 15 days prior to the Drop Dead Date. SUPERIOR PROPOSALS
7.8 Pacifica may accept, approve, recommend or enter into any agreement, arrangement or understanding in respect of a Superior Proposal if and only if:
(a) it has provided Norske Canada with a copy of the Superior Proposal document containing all the material terms and conditions of the Superior Proposal and the identity of the person(s) directly or indirectly making or ultimately directing the Superior Proposal;
(b) five business days (the "NOTICE PERIOD") have elapsed from the later of the date that Norske Canada received notice of the determination to accept, approve, recommend or enter into an agreement or understanding in respect of such Superior Proposal, and only the date Norske Canada received a copy of the Superior Proposal document complying with section 7.8(a); and
(c) during the Notice Period, Pacifica provided a reasonable opportunity to Norske Canada to consider, discuss and offer such adjustments to this Agreement as would enable Pacifica to continue to recommend the extent thatPacifica Arrangement to its shareholders on the basis that the Superior Proposal had ceased to be a Superior Proposal.
7.9 During the Notice Period, (A) Norske Canada shall have the Board right, but not the obligation, to offer to amend the terms of Directors or Board this Agreement. The board of Trust Managers, as applicable, determines directors of Pacifica shall review any offer by Norske Canada to amend the terms of this Agreement in good faith that such action is required for it in order to comply with determine, in its discretion and in the exercise of its fiduciary duties duties, whether Norske Canada's offer would, upon acceptance by Pacifica, result in the Superior Proposal ceasing to limited partners or shareholdersbe a Superior Proposal. If the board of directors of Pacifica so determines, as applicable, imposed by law as advised by counsel, (B) prior to furnishing such information to, or entering Pacifica shall enter into discussions or negotiations with, such person or entity, such party provides written notice to the other party to this Agreement to the effect that it is furnishing information to, or entering into discussions with, such person or entity, and (C) subject to any confidentiality an amended agreement with such person or entity (which such party determined Norske Canada reflecting Norske Canada's amended proposal. If the board of directors of Pacifica determines, in good faith was required to be executed in order for and after consultation with financial advisers and outside counsel, that the Board of Directors or Board of Trust ManagersSuperior Proposal remains a Superior Proposal and therefore rejects Norske Canada's amended proposal, as applicable, to comply with its fiduciary duties to limited partners or shareholders, as applicable, imposed by law as advised by counsel), such party keeps the other party to this Agreement informed of the status (but not the terms) of any such discussions or negotiations; and (y) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal. Nothing in this Section 7.1 shall (i) permit any party to Pacifica may terminate this Agreement (except as specifically provided in Article IX hereofpursuant to section 8.3(e), (iiprovided however that Pacifica must concurrently pay to Norske Canada the Break Fee, if any, payable to Norske Canada under section 9.1(a) permit any party to and must concurrently with termination of this Agreement enter into any a definitive agreement with respect to an Acquisition Proposal during such Superior Proposal. Pacifica acknowledges that the term payment of the Break Fee, if any, payable under section 9.1(a) is a condition to valid termination of this Agreement (under section 8.3(e) and this section 7.9.
7.10 Pacifica shall ensure that its and its Subsidiaries' officers, directors, employees, agents and any financial advisors or other advisors or representatives retained by it being agreed that during or its Subsidiaries are aware of the term provisions of this Agreementarticle 7, no party and Pacifica shall enter into be responsible for any agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal breach of this article 7 by its Subsidiaries (other than a confidentiality agreement in customary form)), the PREI Parties) and its or (iii) affect any their financial advisors or other obligation of any party under this Agreementadvisors or representatives.
Appears in 1 contract