Alternative Proposals. Prior to the Effective Date, the Company agrees (a) that neither it nor any of its Subsidiaries shall, and it and they shall direct and use its and their best efforts to cause its and their respective officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its 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 stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities of, the Company or any of its Subsidiaries (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; (b) 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 it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.9; and (c) that it will notify 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 8.9 shall prohibit the Board of Directors of the Company from (i) furnishing information to or entering into discussions or negotiations with, any person or entity that makes or proposes to make an unsolicited bona fide proposal to acquire the Company pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, if, and only to the extent that, (A) the Board of Directors of the Company determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company provides written 37 43 notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity and (C) the Company keeps Parent promptly informed of the status and all material terms and conditions of any such discussions or negotiations (including identities of parties); and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.9 shall (x) permit the Company to terminate this Agreement (except as specifically provided in Article X hereof), (y) permit the Company to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal), or (z) affect any other obligation of the Company under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Prime Hospitality Corp), Merger Agreement (Cri Esh Partners Lp)
Alternative Proposals. Prior to the Effective DateTime, the Company agrees (a) that neither it nor any of its Subsidiaries shall, and nor shall it and they shall direct and use or any of its and their best efforts to cause its and Subsidiaries, knowingly permit their respective officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation submission of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) with respect to a merger, acquisitionconsolidation, consolidation reorganization, exchange, plan of liquidation or similar transaction involvinginvolving the Company or its Subsidiaries, or any purchase of any equity securities of the Company or all or any significant portion of the assets or any equity securities of, of the Company or any of its Subsidiaries other than the transactions contemplated hereby (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative Proposal") ), or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person or entity relating to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, Proposal or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; (b) that it will immediately promptly cease and cause to be terminated any existing activities, discussions or negotiations with any parties person or entity conducted heretofore with respect to any of the foregoing, and it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.9; and (c) that it will notify Parent immediately the Purchaser promptly 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, itthe Company; provided, however, that nothing contained in this Section 8.9 5.1 shall prohibit the Board of Directors of the Company and its authorized representatives from (i) furnishing information to or entering into discussions or negotiations with, any person or entity that makes or proposes to make an unsolicited bona fide proposal to acquire the Company pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of assets, business combination or other similar transactionAlternative Proposal, if, and only to the extent that, (A) the Board of Directors of the Company Company, based upon the advice of outside counsel, determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company provides written 37 43 notice to Parent the Purchaser to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity entity, and (C) the Company keeps Parent promptly the Purchaser reasonably informed of the status and all material terms and conditions of information with respect to any such discussions or negotiations (including identities of parties)negotiations; and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.9 5.1 shall (x) permit the Company to terminate this Agreement (except as specifically provided in Article X 7 hereof), (y) permit the Company to enter into any agreement with respect to an Alternative Proposal during the term of for as long as this Agreement remains in effect (it being agreed that during the term of for as long as this AgreementAgreement remains in effect, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative ProposalProposal (other than a confidentiality agreement in customary form)), or (z) affect any other obligation of the Company under this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Extended Stay America Inc), Merger Agreement (Studio Plus Hotels Inc)
Alternative Proposals. Prior to From and after the Effective Datedate hereof, the Company agrees that it (ai) that neither will not, its subsidiaries will not, and it nor will not authorize or permit any of its Subsidiaries shall, and it and they shall direct and use or its and their best efforts to cause its and their respective subsidiaries' officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiariessubsidiaries or any of the foregoing) not to, initiate, solicit or encourage, directly or indirectly, encourage, initiate or solicit (including by way of furnishing information) or take any other action to facilitate knowingly any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its stockholdersshareholders) with respect which constitutes or may reasonably be expected to a merger, acquisition, consolidation or similar transaction involving, or lead to an Alternative Proposal (as defined below) from any purchase of all or any significant portion of the assets or any equity securities of, the Company or any of its Subsidiaries (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative Proposal") person or engage in any discussion or negotiations concerning, or provide any confidential non-public information or data to, or have any discussions with, any person relating to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; (bii) that it will immediately cease and cause to be terminated any existing activitiessolicitation, initiation, encouragement, activity, discussions or negotiations with any parties conducted heretofore with respect to any a view of the foregoing, and it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.9formulating an Alternative Proposal; and (ciii) that it will notify Parent immediately if orally and in writing of any such inquiries inquiry, offer or proposals are received by(including, without limitation, the terms and conditions of any such information is requested fromproposal and the identity of the person making it), or within 24 hours of the receipt thereof, and that it shall keep Parent informed of the status and details of any such negotiations inquiry, offer or discussions are sought proposal and shall give Parent 48 hours' prior notice of any agreement to be initiated entered into or continued withof the fact that it proposes to commence providing information to any person making such inquiry, itoffer or proposal; provided, provided however, that nothing contained in this Section 8.9 shall prohibit the Board of Directors of notwithstanding any other provision hereof, the Company from may (i) furnishing information at any time prior to or entering into the time the Company shareholders shall have voted to approve this Agreement engage in discussions or negotiations withwith a third party who (without any solicitation, any person initiation, encouragement, discussion or entity that makes negotiation, directly or proposes to make an unsolicited bona fide proposal to acquire indirectly, by or with the Company pursuant or its representatives after the date hereof) seeks to a mergerinitiate such discussions or negotiations and may furnish such third party information concerning the Company and its business, consolidation, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, properties and assets if, and only to the extent that, (AA)(x) the Board of Directors of the Company determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company provides written 37 43 notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity and (C) the Company keeps Parent promptly informed of the status and all material terms and conditions of any such discussions or negotiations (including identities of parties); and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.9 shall (x) permit the Company to terminate this Agreement (except as specifically provided in Article X hereof), (y) permit the Company to enter into any agreement with respect to third party has first made an Alternative Proposal during that is financially superior to the term of this Agreement (it being agreed that during the term of this Agreement, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal), or (z) affect any other obligation terms of the Company under this Agreement.Merger and has
Appears in 2 contracts
Sources: Merger Agreement (Energy East Corp), Merger Agreement (Central Maine Power Co)
Alternative Proposals. (a) Prior to the Effective DateTime, the Company agrees (ai) that neither it nor any of its Subsidiaries shall, and it and they shall direct and use its and their best efforts to cause its and their its Subsidiaries' respective officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, initiate, solicit solicit, encourage or encouragetake any other action to facilitate, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (includingthat constitutes, without limitationor may reasonably be expected to lead to, any proposal or offer to its stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities of, the Company or any of its Subsidiaries Alternative Proposal (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative Proposal"defined below) 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 Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; (bii) that it will immediately cease and cause to be terminated terminate any existing activities, discussions or negotiations with any parties Person conducted heretofore with respect to any of the foregoing, and it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.9; and (ciii) that it will notify Parent immediately Wats▇▇ ▇▇▇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; provided, however, that nothing contained in this Section 8.9 shall prohibit the Board of Directors of the Company may, in response to any unsolicited written bona-fide proposal from a third party regarding a Superior Proposal (i) furnishing as defined below), furnish or cause to be furnished information to or entering into to, and engage in discussions or negotiations with, any person or entity that makes or proposes to make an unsolicited bona fide proposal to acquire the Company pursuant to a mergersuch third party, consolidation, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, if, and but only to the extent that, if (Av) the Board of Directors of the Company determines in good faith that faith, after consultation with its independent financial and legal advisors to take such action is required for pursuant to the Board exercise of Directors to comply with its fiduciary duties under applicable law; (w) prior to stockholders imposed by lawfurnishing such information to, or entering into discussions or negotiations with such third party, the Company receives from such third party an executed confidentiality agreement with terms no less favorable than those contained in the Confidentiality Agreement (Bas defined herein); (x) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entitythird party, the Company provides written 37 43 notice to Parent to Wats▇▇ ▇▇ the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity and third party; (Cy) the Company keeps Parent promptly informed provides to Wats▇▇ ▇▇▇ of the status relevant details relating to all inquiries and all proposals that the Company may receive relating to any of such matters (including the identity of the Person making such inquiry or proposal and the material terms and conditions of any such discussions or negotiations (including identities proposal) and provides Wats▇▇ ▇▇▇h copies of parties)all materials delivered to such Person; and (iiz) the Company keeps Wats▇▇ ▇▇▇ormed of the status of any such discussions or negotiations. Notwithstanding anything to the extent applicablecontrary contained in this Section 5.1, complying with Rule 14e-2 promulgated under in response to the Exchange Act with regard to Company's or its agent's receipt of an unsolicited written bona-fide proposal from any Person regarding an Alternative Proposal. Nothing in this Section 8.9 shall (x) permit the Company to terminate this Agreement (except as specifically provided in Article X hereof), (y) permit the Company to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal), or (z) affect any other obligation its agents may make inquiries to such Person and its agents to clarify questions relating to ambiguities of the Company under this Agreement.terms of such proposal
Appears in 1 contract
Alternative Proposals. Prior to the Effective DateTime, the Company each of West --------------------- Pac and Frontier agrees (a) that neither it nor any of its Subsidiaries shallshall not, and it and they shall direct and use its and their best efforts to cause its and their respective officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiariesit) 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 stockholders) with respect to a merger, acquisition, consolidation or similar transaction involvinginvolving it, or any purchase of all or any significant portion of the its assets or any equity securities of, the Company or any of its Subsidiaries equity securities (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative ----------- Proposal") or engage in any negotiations concerning, or provide any confidential -------- information or data to, or have any discussions with, any person relating to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; provided, however, that an Alternative Proposal shall not include (i) a proposal made to West Pac or Frontier to acquire the Surviving Corporation, whether by merger, acquisition, consolidation or otherwise (a "Combined Proposal"); (ii) the issuance of securities of West ------------------ Pac in connection with additional equity investments in West Pac or additional financing transactions involving West Pac, including, without limitation, aircraft lease transactions; or (iii) a proposal of a merger, acquisition, consolidation or other similar transaction to a party hereto without any meetings or other discussions relating to the proposal and such party's sole response to the proposal is to inform the proposing party that such party is not interested in the proposal; (b) 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 it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.95.1; and (c) that it will notify Parent 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 8.9 5.1 shall prohibit the its Board of Directors of the Company from (iA) furnishing information to or entering into discussions or negotiations with, any person or entity that makes or proposes to make an unsolicited bona fide proposal to acquire the Company it pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, if, and only to the extent that, (Ai) the its Board of Directors of the Company determines in good faith that such action is required for the its Board of Directors to comply with its fiduciary duties to stockholders imposed by law; (ii) subject to any confidentiality agreement with such person or entity (which it determined in good faith was required to be executed in order for its Board of Directors to comply with its fiduciary duties to stockholders imposed by law), (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company it provides written 37 43 notice to Parent the other party to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity entity; and (Ciii) subject to any confidentiality agreement with such person or entity (which it determined in good faith was required to be executed in order for its Board of Directors to comply with its fiduciary duties to stockholders imposed by law), it keeps the Company keeps Parent promptly other party informed of the status and all material terms and conditions of any such discussions or negotiations (including identities of parties)negotiations; and (iiB) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.9 5.1 shall (x) permit the Company West Pac or Frontier to terminate this Agreement (except as specifically provided in Article X VII hereof), ; (y) permit the Company West Pac or Frontier to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company neither West Pac nor Frontier shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative ProposalProposal (other than a confidentiality agreement in customary form), ); or (z) affect any other obligation of the Company West Pac or Frontier under this Agreement. Upon receipt by either West Pac or Frontier of a Combined Proposal, the receiving party agrees (x) to provide written notice to the other party immediately of such Combined Proposal; and (y) to permit one representative of the other party to be present at any meetings relating to such Combined Proposal (other than non-scheduled phone calls made by one party of the proposed Combined Proposal to the other); provided, however, that Frontier shall be prohibited from entering into any agreement or letter of intent relating to a Combined Proposal.
Appears in 1 contract
Alternative Proposals. Prior (a) Subject to the provisions of this Section 8.4, at all times during the period commencing with Effective Date and continuing until the earlier to occur of the termination of this Agreement and the Second Closing Date, the Company agrees (a) that neither it nor any of its Subsidiaries shallshall not, and it shall cause its officers and they directors not to, and shall direct and use its and their reasonable best efforts to cause its and their respective officers, directors, its Subsidiaries’ employees, agents investment bankers, attorneys and other advisors or representatives (includingcollectively with officers and directors of the Company, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries“Representatives”) not to, (i) solicit, initiate, solicit or encourage, directly or indirectlyinduce any inquiry with respect to, any inquiries or the making making, submission or implementation of any proposal or offer (including, without limitationannouncement of, any proposal or offer which would reasonably be expected to its stockholders) with respect lead to a merger, acquisition, consolidation consolidation, tender offer, exchange offer or similar transaction involving, or any proposal or offer to purchase of all or acquire in any significant portion manner (A) assets representing 10% or more of the assets or any equity securities of, of the Company and its Subsidiaries, taken as a whole, (B) an equity interest in 10% or more of the Equity Securities or (C) any of its Subsidiaries other transaction that is or would be an alternative to the transactions contemplated by this Agreement (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative Proposal"“A▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇”), (▇▇) enter into, participate, continue or otherwise engage in any discussions or negotiations concerningwith, or provide any confidential non-public information or data toto any Person (other than the Purchaser, its Affiliates and its respective representatives) with respect to any inquiries regarding, or have the making of, an Acquisition Proposal or that would otherwise reasonably be expected to lead to any discussions withAcquisition Proposal, (iii) approve, endorse or recommend any person Acquisition Proposal or (iv) enter into or approve any letter of intent, agreement in principle, acquisition agreement or similar agreement relating to an Alternative Acquisition Proposal. The Company shall immediately terminate, and shall cause its Representatives to immediately terminate, all discussions or release negotiations, if any, that are ongoing as of the date hereof with any third party from any obligations under any existing standstill agreement or arrangement relating with respect to any Alternative an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; .
(b) Subject to the provisions of this Section 8.4, the Company may (A) provide information in response to a request by a Person who has made a bona fide written Acquisition Proposal that it will immediately cease and cause to be terminated any existing activities, was not initiated or solicited in violation of Section 8.4(a) if the Company receives from the Person so requesting the information an executed confidentiality agreement that is customary for transactions of the type of the Acquisition Proposal; and/or (B) engage in discussions or negotiations with any parties conducted heretofore Person who has made a bona fide written Acquisition Proposal that was not initiated or solicited in violation of Section 8.4(a), if, in the case of each of clauses (A) and (B), the Company Board determines in good faith after consultation with its financial advisors and outside legal counsel that failure to take this action would be inconsistent with its fiduciary duties under applicable Law and if the Company Board determines in good faith that the Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to lead to a Superior Proposal. As used in this Agreement, “Superior Proposal” means a bona fide Acquisition Proposal that the Company Board determines in good faith (after consultation with its financial advisor and outside legal counsel) is reasonably expected to be consummated in accordance with its terms, taking into account all legal, financial and regulatory aspects of the proposal and the Person making the Acquisition Proposal, and if consummated, would result in a transaction that is more favorable to the stockholders of the Company from a financial point of view than the transactions contemplated by this Agreement (after taking into account any revisions to the terms of the transactions contemplated by this Agreement and the other Operative Agreements agreed to by the Purchaser pursuant to Section 8.4(c)), where the Company Board has concluded, in good faith after consultation with its financial advisors and outside legal counsel, that the failure of the Company Board to identify such proposal as a Superior Proposal would be inconsistent with its fiduciary duties under applicable Law; provided, that for purposes of the definition of “Superior Proposal,” references to 10% in the definition of Acquisition Proposal shall be deemed to be references to “28%.”
(c) The Company shall notify the Purchaser orally and in writing promptly, and in any event within three (3) Business Days, after receipt of any Acquisition Proposal. The written notice shall include the identity of the third party making such Acquisition Proposal, the material terms of the Acquisition Proposal and copies of any written communications and documents setting forth the material terms of such Acquisition Proposal received by the Company from the third party making such Acquisition Proposal or its Representatives or Affiliates, and the Company shall keep the Purchaser reasonably informed of any material changes with respect to such Acquisition Proposal on a prompt basis (and in any event within 24 hours). The Company shall promptly notify the Purchaser orally and in writing upon determination by the Company Board, after consultation with its financial advisors and outside legal counsel, that an Acquisition Proposal is a Superior Proposal. The Company shall not effect a change in the Company Recommendation (whether relating to a Superior Proposal or otherwise) until after the fifth Business Day following the Purchaser’s receipt of written notice (a “Change in Recommendation Notice”) from the Company (i) with respect to a change in the Company Recommendation as a result of the foregoingSuperior Proposal, advising the Purchaser that the Company Board has received a Superior Proposal, specifying the terms and conditions of the Superior Proposal and stating that the Company Board intends to effect a Change in Recommendation and (ii) with respect to a change in the Company Recommendation not relating to a Superior Proposal, specifying in reasonable detail the Intervening Event precipitating the Change in Recommendation and the reason for such change in Company Recommendation. The Company agrees that after providing the Purchaser a Change in Recommendation Notice, during the five-Business Day period specified in the preceding sentence (such period, the “Purchaser Review Period”), the Purchaser will be permitted to propose to the Company revisions to the terms of the transactions contemplated by this Agreement and the other Operative Agreements, and it will take the necessary steps Company and its Representatives will, if requested by the Purchaser, negotiate in good faith with the Purchaser and its Representatives regarding any revisions to inform the individuals or entities referred to above terms of the obligations undertaken transactions contemplated by this Agreement and the other Operative Agreements proposed by the Purchaser.
(d) Nothing contained in this Section 8.9; 8.4 shall prohibit the Company or the Company Board from taking and (cdisclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) that it will notify Parent immediately if any promulgated under the Exchange Act or from making such inquiries or proposals are received bydisclosure to the Company’s stockholders which, any such information in the judgment of the Company Board after receiving advice of outside legal counsel, is requested from, or any such negotiations or discussions are sought reasonably likely to be initiated or continued with, itrequired under applicable Law.
(e) The Purchaser agrees that the provisions of Section 2.5 of the Governance Agreement shall not restrict the Company Board’s consideration of any matter pursuant to this Section 8.4; provided, however, that nothing contained in this the Company may not consummate a transaction prohibited by Section 8.9 shall prohibit the Board of Directors 2.5 of the Governance Agreement without the prior written consent of the Purchaser.
(f) If Purchaser or an Affiliate of Purchaser commences a tender offer to acquire Common Stock up to the Share Cap when permitted to do so by, and in accordance with, Section 8.17 below, the Company from or the Company Board will recommend that stockholders tender their shares of Common Stock pursuant to such offer, and take all actions to support such offer reasonably requested by Purchaser, provided that (i) furnishing information to the purchase price per share of Common Stock offered in such offer is at or entering into discussions or negotiations with, any person or entity that makes or proposes to make an unsolicited bona fide proposal to acquire above the Company pursuant to a merger, consolidation, share exchange, purchase price of a substantial portion of assets, business combination or other similar transaction, if, and only the Common Stock on the trading day immediately prior to the extent that, (A) the Board commencement of Directors of the Company determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, offer or entering into discussions or negotiations with, such person or entity, the Company provides written 37 43 notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity and (C) the Company keeps Parent promptly informed of the status and all material terms and conditions of any such discussions or negotiations (including identities of parties); and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.9 shall (x) permit the Company to terminate this Agreement (except tender offer is styled as specifically provided in Article X hereof), (y) permit the Company to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal), or (z) affect any other obligation of the Company under this Agreementa “Dutch auction”.
Appears in 1 contract
Sources: Securities Purchase Agreement (Central European Distribution Corp)
Alternative Proposals. Prior to the Effective DateTime, the Company PanEnergy agrees (a) that neither it nor any of its Subsidiaries shall, and it and they shall direct and use its and their best reasonable efforts to cause its and their respective officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its SubsidiariesSubsidiaries or any of the foregoing) 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 stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities of, the Company or any of its Subsidiaries an Alternative Proposal (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative Proposal"defined below) or engage in any negotiations concerning, or provide any confidential non-public information or data to, or have any discussions with, any person relating to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; (b) 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 it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.98.1; and (c) that it will notify Parent Duke 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 8.9 8.1 shall prohibit the Board of Directors of the Company PanEnergy from (i) furnishing information (pursuant to a confidentiality letter deemed appropriate by the Board of Directors of PanEnergy) to or entering into discussions or negotiations with, any person or entity that makes or proposes to make an unsolicited bona fide proposal or offer to the stockholders of PanEnergy, to acquire the Company PanEnergy pursuant to a merger, consolidation, share purchase, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, if, and only to the extent that, (A) the Board of Directors of the Company PanEnergy determines in good faith upon the advice of outside counsel that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company PanEnergy provides written 37 43 notice to Parent to Duke of the effect identity of the person or entity making the Alternative Proposal and that it is furnishing intends to furnish information to, or entering intends to enter into discussions or negotiations with, such person or entity and entity, (C) the Company PanEnergy keeps Parent promptly Duke informed on a timely basis of the status and all material terms and conditions of any such discussions or negotiations and all terms and conditions thereof and promptly provides Duke with copies of any written inquiries or proposals relating thereto, and (including identities D) in the event that the Board of partiesDirectors of PanEnergy determines to accept any such Alternative Proposal (in accordance with subclause (A) above), PanEnergy provides Duke with at least three days' prior written notice thereof, during which time Duke may make, and in such event, PanEnergy shall in good faith consider, a counterproposal to such Alternative Proposal; and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.9 8.1 shall (x) permit the Company PanEnergy to terminate this Agreement (except as specifically provided in Article X 10 hereof), (y) permit the Company PanEnergy to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company PanEnergy shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative ProposalProposal (other than a confidentiality agreement deemed appropriate by the Board of Directors of PanEnergy)), or (z) affect any other obligation of the Company PanEnergy under this Agreement.. "Alternative Proposal"
Appears in 1 contract
Sources: Merger Agreement (Panenergy Corp)
Alternative Proposals. Prior to the Effective DateTime, --------------------- the Company agrees agrees
(a) that neither it shall not, nor any of shall it permit its Subsidiaries shall, and it and they shall direct and use its and their best efforts to cause its and their respective officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiariesit) not to, initiate, solicit or knowingly encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of any equity securities of, the Company or all or any significant portion of the assets or any equity securities of, of the Company or any of its Subsidiaries (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person or entity relating to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, Proposal or otherwise take any action to knowingly facilitate any effort or attempt to make or implement an Alternative Proposal; ;
(b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties person or entity conducted heretofore with respect to any of the foregoing, foregoing and it will take the necessary steps to inform the individuals any such person or entities referred to above entity of the Company's obligations undertaken in under this Section 8.95.1; and and
(c) that it will notify Parent the 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 8.9 5.1 shall prohibit the Board of Directors of the Company from (i) furnishing information to or entering into discussions or negotiations with, any person or entity that makes or proposes an unsolicited, bona fide, Fully-Financed (as hereinafter defined) Alternative Proposal which would yield to make an unsolicited bona fide proposal to acquire stockholders a net price of not less than $4.85 per share in cash and without reduction of any sort (a "Qualifying Alternative Proposal") and that the Board of Directors of the Company pursuant in good faith determines (in consultation with its financial advisors) represents a financially superior transaction for the stockholders of the Company as compared to a merger, consolidation, share exchange, purchase of a substantial portion of assets, business combination or other similar transactionthe Merger, if, and only to the extent that, (A) the Board of Directors of the Company Company, based upon the advice of outside counsel, determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company provides written 37 43 notice to Parent the Purchaser to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity entity, and (C) the Company keeps Parent promptly the Purchaser informed of the status and all material terms and conditions of information with respect to any such discussions or negotiations (including identities of parties)negotiations; and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.9 5.1 shall (xA) permit the Company to terminate this Agreement (except as specifically provided in Article X 7 hereof), (yB) permit the Company to enter into any agreement with respect to an Alternative Proposal during the term of for as long as this Agreement remains in effect unless the Company shall have given the Purchaser ten days' prior written notice of its intent to terminate the Agreement during which period the Purchaser will have the opportunity to match the consideration offered by any such Alternative Proposal (if the Purchaser offers to match such consideration, the Agreement shall be amended to increase the consideration and, if necessary, to extend time periods to permit proxy recirculation (it being agreed that during the term of for as long as this AgreementAgreement remains in effect, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal), or (zC) affect any other obligation of the Company under this Agreement. For purposes hereof, a "Fully-Financed" Alternative Proposal shall be one where the prospective acquiror through its possession of one or more of (i) marketable securities, cash and cash equivalents, (ii) undrawn lines of credit from reputable financial institutions and (iii) commitment letters from one or more reputable institutions (which may only be subject to completion of due diligence and other standard conditions), has sufficient financing to pay in full the consideration provided for in such Alternative Proposal and any amounts payable pursuant to Section 7.5(a) of this Agreement. Notwithstanding anything to the contrary contained herein, a Qualifying Alternative Proposal may be subject to the reasonable due diligence of the prospective acquiror.
Appears in 1 contract
Sources: Merger Agreement (Lion Brewery Inc)
Alternative Proposals. Prior to the Effective DateTime, the Company agrees --------------------- agrees:
(a) that neither it shall not, nor any of shall it permit its Subsidiaries shall, and it and they shall direct and use its and their best efforts to cause its and their respective officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiariesit) not to, initiate, solicit or knowingly encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its stockholdersshareholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of any equity securities of, the Company or all or any significant portion of the assets or any equity securities of, of the Company or any of its Subsidiaries (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person or entity relating to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, Proposal or otherwise take any action to knowingly facilitate any effort or attempt to make or implement an Alternative Proposal; ;
(b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties person or entity conducted heretofore with respect to any of the foregoing, foregoing and it will take the necessary steps to inform the individuals any such person or entities referred to above entity of the Company's obligations undertaken in under this Section 8.95.1; and and
(c) that it will notify Parent the 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 8.9 5.1 shall prohibit the Board of Directors of the Company from (i) furnishing information to or entering into discussions or negotiations with, any person or entity that makes or proposes to make an unsolicited unsolicited, bona fide proposal to acquire Alternative Proposal that the Board of Directors of the Company pursuant in good faith determines (in consultation with its financial advisors) represents a financially superior transaction for the shareholders of the Company as compared to a merger, consolidation, share exchange, purchase of a substantial portion of assets, business combination or other similar transactionthe Merger, if, and only to the extent that, (A) the Board of Directors of the Company Company, based upon the advice of outside counsel, determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, law and (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company provides written 37 43 notice to Parent the Purchaser to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity and (C) the Company keeps Parent promptly informed of the status and all material terms and conditions of any such discussions or negotiations (including identities of parties)entity; and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.9 5.1 shall (xA) permit the Company to terminate this Agreement (except as specifically provided in Article X 7 hereof), (yB) permit the Company to enter into any agreement with respect to an Alternative Proposal during the term of for as long as this Agreement remains in effect unless the Company shall have given the Purchaser 5 days' prior written notice of its intent to terminate the Agreement during which period the Purchaser will have the opportunity to match the consideration offered by any such Alternative Proposal (if the Purchaser offers to match such consideration, the Agreement shall be amended to increase the consideration and, if necessary, to extend time periods to permit proxy recirculation (it being agreed that during the term of for as long as this AgreementAgreement remains in effect, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal), or (zC) affect any other obligation of the Company under this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Firecom Inc)
Alternative Proposals. Prior to the Effective DateTime, the --------------------- Company agrees (a) that that, neither it shall, nor any of its Subsidiaries shall, and it and they shall direct and use its and their best efforts to cause its and their respective officersemployees, directors, employeesrepresentatives, agents and representatives affiliates or advisors (including, without limitation, any legal, accounting, financial and investment banker, attorney or accountant retained by it or any of its Subsidiariesbanking advisors) not to, will (i) initiate, solicit solicit, encourage or encouragetake any other action to facilitate, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (includingthat constitutes, without limitationor may reasonably be expected to lead to, any proposal or offer to its stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities of, the Company or any of its Subsidiaries (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative 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 Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; , (bii) that it will immediately cease and cause to be terminated terminate any existing activities, discussions or negotiations with any parties person conducted heretofore with respect to any of the foregoing, and it will take provided, -------- however, that the necessary steps Company shall not initiate communications (whether orally or ------- in writing) in any manner with ▇▇▇▇.▇▇▇ prior to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.9; Effective Time, and (ciii) that it will notify Parent Petopia 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 the Company. Notwithstanding the foregoing, it; provided, however, that nothing contained in this Section 8.9 shall prohibit the Board of Directors of if the Company or any of its employees or agents receives an unsolicited call or written information from (i) furnishing information to or entering into discussions or negotiations with, any person or entity that makes or proposes to make an unsolicited bona fide proposal to acquire the Company pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, if, and only to the extent that, (A) the Board of Directors of the Company determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company provides written 37 43 notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity and (C) the Company keeps Parent promptly informed of the status and all material terms and conditions of any such discussions or negotiations (including identities of parties); and (ii▇▇▇▇.▇▇▇) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard relating to an Alternative Proposal. Nothing in this Section 8.9 shall (x) permit the Company to terminate this Agreement (except as specifically provided in Article X hereof), (y) permit the Company to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company and/or its employees shall not enter into be entitled to inform such person that they are unable to talk to them at this time. As used herein, the term "Alternative Proposal" means --------------------
(i) a merger, consolidation or other business combination with the Company, or any agreement with or letter of intent or understanding relating to any such transaction, (ii) any sale, lease, exchange, mortgage, pledge, transfer, or other disposition involving a substantial part of the Company's assets, or any agreement or letter of intent or understanding relating to such transaction, (iii) the acquisition by any person that provides for, of 25% or in any way facilitates, an Alternative Proposal)more of the outstanding capital stock or capital stock equivalents of the Company, or (ziv) affect any other obligation reclassification of securities or recapitalization of the Company under this Agreementor other transaction that has the effect, directly or indirectly, of increasing the proportionate share of any class of equity security (including securities convertible into equity securities) of the Company that is owned by any person, or any agreement or letter of intent or understanding relating to such transaction.
Appears in 1 contract
Sources: Merger Agreement (Petopia Com Inc)
Alternative Proposals. Prior to the Effective Date, the The Company agrees (a) that that, between the date hereof and the consummation of the Offer, neither it nor any of its Subsidiaries shall, and it and they shall direct and use its and their best efforts to cause its and their respective officers, directors, managing directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) (collectively, "Representatives") 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 stockholdersshareholders), (i) with respect to a merger, acquisition, consolidation consolidation, recapitalization, business combination or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities of, the Company or any of its Subsidiaries (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, afford access to the properties, books or records of the Company or any of its Subsidiaries to, or have any discussions with, any person Person relating to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative ProposalProposal or any agreement or arrangement requiring the Company to abandon, terminate or delay the consummation of the Offer or other transactions contemplated by this Agreement; (b) 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 it will take the necessary steps to inform the individuals or entities referred to above such parties of the obligations undertaken in this Section 8.95.1; and (c) that it will notify Parent immediately Purchaser promptly of the identity of the potential acquiror and the terms of such Person's proposal 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, itthe Company; provided, however, that nothing contained in this Section 8.9 5.1 shall prohibit the Company's Supervisory Board or Board of Directors of the Company Management from (i) prior to the acceptance for payment of Common Shares by Offer Sub pursuant to the Offer, furnishing information to to, or entering into discussions or negotiations with, any person or entity Person that makes or proposes to make an unsolicited bona fide proposal to acquire the Company pursuant to a merger, consolidation, share exchange, purchase of substantially all of the assets of the Company, a substantial portion of assets, business combination or other similar transaction, if, and only to the extent that, (A) such proposal was not initially solicited, encouraged or knowingly facilitated by the Board Company, its Subsidiaries or their Representatives in violation of Directors of the Company determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by lawthis Section 5.1, (B) if each Board determines in good faith, after receiving the advice of its outside advisors, including outside counsel and others, (i) that such Alternative Proposal is more favorable from a financial point of view as compared to the Offer and (ii) failure to furnish such information or enter into such discussions or negotiations with such Person would violate the Boards' fiduciary duties, (C) the Boards of the Company determine in good faith in the exercise of reasonable business judgment that such proposal is likely to be successfully financed if accepted by shareholders, and (D) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company enters into a confidentiality agreement with the Person or entity with terms no less favorable to the Company than the Confidentiality Agreement between Parent and the Company and provides written 37 43 notice to Parent Purchaser to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity and (C) the Person. The Company keeps Parent promptly shall keep Purchaser reasonably informed of the status and all material terms and conditions of any such discussions or negotiations (including identities the identity of partiessuch Person and the terms of any proposal); and (ii) to the extent applicable, complying with Rule 14e-2 14e-2(a) promulgated under the Exchange Act or with applicable Dutch Law with regard to an Alternative Proposal. Nothing in this Section 8.9 5.1 shall (x) permit the Company to terminate this Agreement (except as specifically provided in Article X 6 hereof), (y) permit the Company to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal), or (z) affect any other obligation of the Company under this Agreement.
Appears in 1 contract
Alternative Proposals. Prior to the Effective Date, the Company agrees (a) that neither it nor any of its Subsidiaries shall, and it and they shall direct and use its and their best efforts to cause its and their respective officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its 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 stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities of, the Company or any of its Significant Subsidiaries (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; (b) 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 it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.98.7; and (c) that it will notify 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 8.9 8.7 shall prohibit the Board of Directors of the Company from (i) furnishing information to or entering into discussions or negotiations with, any person or entity that makes or proposes to make an unsolicited bona fide proposal to acquire the Company pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, if, and only to the extent that, (A) the Board of Directors of the Company determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company provides written 37 43 notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity and (C) the Company keeps Parent promptly informed of the status and all material terms and conditions of any such discussions or negotiations (including identities of parties)) and, if any such proposal or inquiry is in writing, furnishes a copy of such proposal or inquiry to Parent as soon as practicable after the receipt thereof; and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.9 8.7 shall (x) permit the Company to terminate this Amended and Restated Agreement (except as specifically provided in Article X hereof), (y) permit the Company to enter into any agreement with respect to an Alternative Proposal during the term of this Amended and Restated Agreement (it being agreed that during the term of this Amended and Restated Agreement, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative ProposalProposal (other than a confidentiality agreement in customary form)), or (z) affect any other obligation of the Company under this Amended and Restated Agreement.
Appears in 1 contract
Alternative Proposals. Prior to the Effective Date, the Company agrees (a) that neither it nor any of its Subsidiaries shall, and it and they shall direct and use its and their best efforts to cause it and its and their respective Subsidiaries' officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its 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 stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion substantially all of the assets or any equity securities of, the Company or any of its Subsidiaries (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; (b) 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 it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.99.6; and (c) that it will notify 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; it or any of its Subsidiaries: provided, however, that nothing contained in this Section 8.9 9.6 shall prohibit the Board of Directors of the Company from (i) furnishing information to or entering into discussions or negotiations with, any person or entity that makes or proposes to make an unsolicited bona fide proposal to acquire the Company pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, if, and only to the extent that, (A) the Board of Directors of the Company determines in good faith (after consultation with and based on advice of its outside legal counsel) that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, (i) the Company provides written 37 43 notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity and (ii) the Company and such person or entity enter into an appropriate confidentiality agreement with respect to information to be supplied by the Company and (C) the Company keeps Parent promptly informed of the status and all material terms and conditions of any such discussions or negotiations (including identities of parties)) and, if any such proposal or inquiry is in writing, furnishes a copy of such proposal or inquiry to Parent as soon as practicable after the receipt thereof; and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.9 9.6 shall (x) permit the Company to terminate this Agreement (except as specifically provided in Article X XI hereof), (y) permit the Company to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative ProposalProposal (other than a confidentiality agreement in customary form)), or (z) affect any other obligation of the Company under this Agreement.
Appears in 1 contract
Alternative Proposals. Prior to the Effective DateTime, the Company agrees (a) that neither it nor any of its Subsidiaries shall, and nor shall it and they shall direct and use or any of its and their best efforts to cause its and Subsidiaries permit their respective officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, initiate, solicit or knowingly encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of any equity securities of, the Company or all or any significant portion of the assets or any equity securities of, of the Company or any of its Subsidiaries (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person or entity relating to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, Proposal or otherwise take any action to knowingly facilitate any effort or attempt to make or implement an Alternative Proposal; (b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties person or entity conducted heretofore with respect to any of the foregoing, foregoing and it will take the necessary steps to inform the individuals any such person or entities referred to above entity of the obligations undertaken in under this Section 8.95.1; and (c) that it will notify Parent the 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 8.9 5.1 shall prohibit the Board of Directors of the Company from (i) furnishing information to or entering into discussions or negotiations with, any person or entity that makes or proposes to make an unsolicited unsolicited, bona fide proposal Alternative Proposal or delivers an unsolicited, bona fide, written expression of interest that could reasonably be expected to acquire lead to an Alternative Proposal, which is not subject to the arrangement of financing (other than securities of an acquiror to be issued to holders of shares of Common Stock in an acquisition thereof by merger or consolidation) and that the Board of Directors of the Company pursuant in good faith determines (in consultation with its financial advisors) represents a financially superior transaction for the stockholders of the Company as compared to a merger, consolidation, share exchange, purchase of a substantial portion of assets, business combination or other similar transactionthe Merger, if, and only to the extent that, (A) the Board of Directors of the Company Company, based upon the advice of outside counsel, determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company provides written 37 43 notice to Parent the Purchaser to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity entity, and (C) subject to the same fiduciary standards as in the preceding clause (A), the Company keeps Parent promptly the Purchaser informed of the status and all material terms and conditions of information with respect to any such discussions or negotiations (including identities of parties)negotiations; and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.9 5.1 shall (xA) permit the Company to terminate this Agreement (except as specifically provided in Article X 7 hereof), (yB) permit the Company to enter into any agreement with respect to an Alternative Proposal during the term of for as long as this Agreement remains in effect (it being agreed that during the term of for as long as this AgreementAgreement remains in effect, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative ProposalProposal (other than a confidentiality agreement in customary form)), or (zC) affect any other obligation of the Company under this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Alberto Culver Co)
Alternative Proposals. Prior to the Effective DateTime, the Company agrees (a) that neither it nor any of its Subsidiaries shall, and it and they shall direct and use its and their best efforts to cause its and their respective officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, initiate, solicit initiate or encouragesolicit, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its stockholdersStockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities of, the Company or any of its Subsidiaries (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; (b) 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 it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.95.1; and (c) that it will notify Parent the other 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 8.9 5.1 shall prohibit the Board of Directors of the Company from (iA) furnishing information to or entering into discussions or negotiations with, any person or entity that makes or proposes to make an unsolicited bona fide proposal to acquire the Company pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, if, and only to the extent that, (Ai) the Board of Directors of the Company determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, ; (Bii) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company provides written 37 43 notice to Parent to Wats▇▇ ▇▇ the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity entity; and (Ciii) subject to any confidentiality agreement with such person or entity (which the Company determined in good faith was required to be executed in order for its Board of Directors to comply with its fiduciary duties to stockholders imposed by law), the Company keeps Parent promptly informed Wats▇▇ ▇▇▇ormed of the status and all material terms and conditions of any such discussions or negotiations (including identities of parties)negotiations; and (iiB) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.9 5.1 shall (x) permit the Company to terminate this Agreement (except as specifically provided in Article X 7 hereof), ; (y) permit the Company to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal), or (z) affect any other obligation of the Company under this Agreement.shall
Appears in 1 contract
Alternative Proposals. Prior to the Effective Date, the The Company agrees (a) that that, between the date hereof and the Effective Time, neither it nor any of its Subsidiaries shall, and it and they shall direct and use its and their best efforts to cause its and their respective officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its 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 stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities of, the Company or any of its Subsidiaries (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, afford access to the properties, books or records of the Company or any of its Subsidiaries to, or have any discussions with, any person Person relating to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; (b) 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 it will take the necessary steps to inform the individuals or entities referred to above such parties of the obligations undertaken in this Section 8.96.1; and (c) that it will notify Parent immediately of the identity of the potential acquirer and the terms of such Person's or entity's proposal 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, itthe Company; provided, however, that nothing contained in this Section 8.9 6.1 shall prohibit the Board of Directors Company or its Subsidiaries, upon approval of the Company Special Committee, from (i) prior to the acceptance for payment of shares of Common Stock by Purchaser pursuant to the Offer, furnishing information to to, or entering into discussions or negotiations with, any person Person or entity that makes or proposes to make an unsolicited bona fide proposal to acquire the Company pursuant to a merger, consolidation, share exchange, purchase of substantially all of the assets of the Company, a substantial portion of assets, business combination or other similar transaction, if, and only to the extent that, (A) such proposal was not initially solicited, encouraged or knowingly facilitated by the Board Company, its Subsidiaries or their agents in violation of Directors of this Section 6.1, (B) such proposal is not subject to a financing condition and involves consideration that provides a higher value per share than the Merger Consideration, (C) the Company Board, or the Company's directors constituting the Special Committee, determines in good faith based on the advice of outside counsel that the taking of such action is required for the Board of Directors to comply would be inconsistent with its fiduciary duties to stockholders imposed by lawLaw, and (BD) prior to furnishing such information to, or entering into discussions or negotiations with, such person Person or entity, the Company provides written 37 43 notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person Person or entity and (C) the entity. The Company keeps shall keep Parent promptly immediately informed of the status and all material terms and conditions of any such discussions or negotiations (including identities the identify of partiessuch Person or entity and the terms of any proposal); and (ii) to the extent applicable, complying with Rule 14e-2 14e-2(a) promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.9 6.1 shall (x) permit the Company to terminate this Agreement (except as specifically provided in Article X 8 hereof), (y) permit the Company to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal), or (z) affect any other obligation of the Company under this Agreement. Notwithstanding anything to the contrary in this Section 6.1, Parent and Purchaser have advised the Company Board that they have no intention of selling the Parent Shares or the Shares acquired by Purchaser in the Offer pursuant to such an Alternative Proposal.
Appears in 1 contract
Alternative Proposals. Prior to the Effective Date, the Company agrees (a) that neither it nor any From the Effective Date until the Closing of its Subsidiaries shallthe transactions contemplated by, or termination of, this Agreement and subject to Section 6.4(b), Seller
(i) will not, and it and they shall will direct and use its and their best efforts to cause its and their respective officers, directors, employees, agents and representatives (including, without limitation, including any investment banker, attorney or accountant retained by it or any either of its Subsidiariesthem) not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, including any proposal or offer to its stockholdersboard of directors) with respect to a merger, acquisition, consolidation consolidation, business combination or similar transaction involving, or any involving the purchase of or transfer of control over all or any significant portion of the assets Assets or any equity securities of, the Company or any of its Subsidiaries membership interests in Seller (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative Proposal") ), or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person Person relating to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; ;
(bii) 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 of the foregoing, and it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.9Section; and and
(ciii) that it will notify Parent 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 .
(b) Nothing contained in this Section 8.9 6.4(a) shall prohibit the Board board of Directors trustees, officers or agents of the Company Seller from (i) furnishing information to or entering into discussions or negotiations with, with any person or entity Person that makes or proposes to make an unsolicited bona fide proposal to acquire the Company pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, if, and only to the extent that, Alternative Proposal; provided that (A) the Board board of Directors trustees of the Company Seller determines in good faith that such action is required for the Board of Directors board to comply with its fiduciary duties to stockholders imposed by non-profit corporation law and other law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entityPerson, the Company Seller provides written 37 43 notice to Parent Buyer to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity Person, and (C) the Company subject to any confidentiality agreement with such Person (which Seller determined in good faith was required to be executed in order for its board to comply with fiduciary duties imposed by law), Seller keeps Parent promptly Buyer informed of the status and all material terms and conditions (not the terms) of any such discussions or negotiations negotiations.
(including identities of parties); and (iic) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.9 shall shall:
(xi) permit the Company Seller to terminate this Agreement (except as specifically provided in Article X hereof), 11;
(yii) permit the Company Seller to enter into any agreement Contract with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company Agreement Seller shall not enter into any agreement Contract with any person Person that provides for, for or in any way facilitates, facilitates an Alternative ProposalProposal (other than a confidentiality agreement in customary form), or ); or
(ziii) affect any other obligation of the Company Seller under this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Vanguard Health Systems Inc)
Alternative Proposals. Prior to the Effective DateTime, the Company agrees (a) that neither it nor any of its Subsidiaries shall, and nor shall it and they shall direct and use or any of its and their best efforts to cause its and Subsidiaries permit their respective officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, initiate, solicit or knowingly encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of any equity securities of, the Company or all or any significant portion of the assets or any equity securities of, of the Company or any of its Subsidiaries (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person or entity relating to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, Proposal or otherwise take any action to knowingly facilitate any effort or attempt to make or implement an Alternative Proposal; (b) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties person or entity conducted heretofore with respect to any of the foregoing, foregoing and it will take the necessary steps to inform the individuals any such person or entities referred to above entity of the obligations undertaken in under this Section 8.95.1; and (c) that it will notify Parent the 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 8.9 5.1 shall prohibit the Board of Directors of the Company from (i) furnishing information to or entering into discussions or negotiations with, any person or entity that makes or proposes to make an unsolicited unsolicited, bona fide proposal Alternative Proposal or delivers an unsolicited, bona fide, written expression of interest that could reasonably be expected to acquire lead to an Alternative Proposal, which is not subject to the arrangement of financing (other than securities of an acquiror to be issued to holders of shares of Common Stock in an acquisition thereof by merger or consolidation) and that the Board of Directors of the Company pursuant in good faith determines (in consultation with its financial advisors) represents a financially superior transaction for the stockholders of the Company as compared to a merger, consolidation, share exchange, purchase of a substantial portion of assets, business combination or other similar transactionthe Merger, if, and only to the extent that, (A) the Board of Directors of the Company Company, based upon the advice of outside counsel, determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company provides written 37 43 notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity and (C) the Company keeps Parent promptly informed of the status and all material terms and conditions of any such discussions or negotiations (including identities of parties); and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.9 shall (x) permit the Company to terminate this Agreement (except as specifically provided in Article X hereof), (y) permit the Company to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal), or (z) affect any other obligation of the Company under this Agreement.action
Appears in 1 contract
Sources: Merger Agreement (Worth John R)
Alternative Proposals. Upon execution of this Agreement, the --------------------- Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore. Prior to the Effective DateTime, the Company agrees (a) that neither it nor any of its Subsidiaries shallwill, and nor will it and they shall direct and use or any of its and their best efforts to cause its and Subsidiaries permit their respective officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer Alternative Proposal (includingas defined below) or, without limitationexcept as set forth below, any proposal or offer to its stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities of, the Company or any of its Subsidiaries (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; . An "Alternative Proposal" means, other than the transactions contemplated hereby and by the Stock Agreement, the receipt by the Company of any inquiries or the making or implementation of any proposal or offer (bincluding without limitation any proposal or offer to its stockholders) that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to a merger, acquisition, consolidation or similar transaction involving any purchase of all or any significant portion of the assets of the Company or any of its Subsidiaries or a 10% or more equity interest in the Company by a person or entity that takes a position detrimental to the Merger. Notwithstanding the foregoing, and it will take in the necessary steps event the Company receives an unsolicited written proposal or written offer with respect to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.9; and (c) that it will notify Parent immediately if any such inquiries or proposals are received byan Alternative Proposal, 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 8.9 shall prohibit the Board of Directors of the Company from shall be entitled, solely to the extent it has been advised (i) furnishing by its outside counsel that a failure to do so would violate its fiduciary obligations under applicable law and (ii) by its financial advisor that the Alternative Proposal is financially superior to the Merger and the transactions contemplated thereby, to review and participate in negotiations concerning such proposal and furnish relevant information to or entering into discussions or negotiations with, any person or entity that makes or proposes to make an unsolicited bona fide proposal to acquire concerning the Company pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, if, and only to the extent that, offeror; provided that (A) the Company shall have furnished, or concurrently with the provision of such information to such offeror shall furnish, Parent with all such information provided to such offeror and (B) the offeror executes a confidentiality agreement with the Company on substantially the same terms as that entered into with Parent. The Company shall notify Parent promptly of any such unsolicited Alternative Proposal, or any inquiry or contact with any person with respect thereto. In addition, in the event the Company (i) enters into negotiations with respect to an unsolicited Alternative Proposal or (ii) the Company's Board of Directors shall withdraw its approval of this Agreement and the transactions contemplated hereby or its recommendation to the stockholders of the Company determines in good faith that such action is required for to approve the Board of Directors to comply with its fiduciary duties to stockholders imposed by lawsame, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, then the Company provides written 37 43 shall immediately deliver an additional notice of such events to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity and (C) the Company keeps Parent promptly informed of the status and all material terms and conditions of any such discussions or negotiations (including identities of parties); and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative ProposalParent. Nothing in this Section 8.9 shall 6.1 will (x) permit the Company to terminate this Agreement (except as specifically provided in Article X hereof)Agreement, (y) permit the Company to enter into any agreement with respect to an Alternative Proposal during the term of for as long as this Agreement remains in effect (it being agreed that during the term of for as long as this AgreementAgreement remains in effect, the Company shall will not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal), or (z) affect any other obligation of the Company under this Agreement.
Appears in 1 contract
Alternative Proposals. Prior (a) Subject to the provisions of this Section 8.4, at all times during the period commencing with Effective Date and continuing until the earlier to occur of the termination of this Agreement and the Second Closing Date, the Company agrees (a) that neither it nor any of its Subsidiaries shallshall not, and it shall cause its officers and they directors not to, and shall direct and use its and their reasonable best efforts to cause its and their respective officers, directors, its Subsidiaries’ employees, agents investment bankers, attorneys and other advisors or representatives (includingcollectively with officers and directors of the Company, without limitation, any investment banker, attorney or accountant retained by it or any of its Subsidiaries“Representatives”) not to, (i) solicit, initiate, solicit or encourage, directly or indirectlyinduce any inquiry with respect to, any inquiries or the making making, submission or implementation of any proposal or offer (including, without limitationannouncement of, any proposal or offer which would reasonably be expected to its stockholders) with respect lead to a merger, acquisition, consolidation consolidation, tender offer, exchange offer or similar transaction involving, or any proposal or offer to purchase of all or acquire in any significant portion manner (A) assets representing 10% or more of the assets or any equity securities of, of the Company and its Subsidiaries, taken as a whole, (B) an equity interest in 10% or more of the Equity Securities or (C) any of its Subsidiaries other transaction that is or would be an alternative to the transactions contemplated by this Agreement (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative “Acquisition Proposal"”), (ii) enter into, participate, continue or otherwise engage in any discussions or negotiations concerningwith, or provide any confidential non-public information or data toto any Person (other than the Purchaser, its Affiliates and its respective representatives) with respect to any inquiries regarding, or have the making of, an Acquisition Proposal or that would otherwise reasonably be expected to lead to any discussions withAcquisition Proposal, (iii) approve, endorse or recommend any person Acquisition Proposal or (iv) enter into or approve any letter of intent, agreement in principle, acquisition agreement or similar agreement relating to an Alternative Acquisition Proposal. The Company shall immediately terminate, and shall cause its Representatives to immediately terminate, all discussions or release negotiations, if any, that are ongoing as of the date hereof with any third party from any obligations under any existing standstill agreement or arrangement relating with respect to any Alternative an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; .
(b) Subject to the provisions of this Section 8.4, the Company may (A) provide information in response to a request by a Person who has made a bona fide written Acquisition Proposal that it will immediately cease and cause to be terminated any existing activities, was not initiated or solicited in violation of Section 8.4(a) if the Company receives from the Person so requesting the information an executed confidentiality agreement that is customary for transactions of the type of the Acquisition Proposal; and/or (B) engage in discussions or negotiations with any parties conducted heretofore Person who has made a bona fide written Acquisition Proposal that was not initiated or solicited in violation of Section 8.4(a), if, in the case of each of clauses (A) and (B), the Company Board determines in good faith after consultation with its financial advisors and outside legal counsel that failure to take this action would be inconsistent with its fiduciary duties under applicable Law and if the Company Board determines in good faith that the Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to lead to a Superior Proposal. As used in this Agreement, “Superior Proposal” means a bona fide Acquisition Proposal that the Company Board determines in good faith (after consultation with its financial advisor and outside legal counsel) is reasonably expected to be consummated in accordance with its terms, taking into account all legal, financial and regulatory aspects of the proposal and the Person making the Acquisition Proposal, and if consummated, would result in a transaction that is more favorable to the stockholders of the Company from a financial point of view than the transactions contemplated by this Agreement (after taking into account any revisions to the terms of the transactions contemplated by this Agreement and the other Operative Agreements agreed to by the Purchaser pursuant to Section 8.4(c)), where the Company Board has concluded, in good faith after consultation with its financial advisors and outside legal counsel, that the failure of the Company Board to identify such proposal as a Superior Proposal would be inconsistent with its fiduciary duties under applicable Law; provided, that for purposes of the definition of “Superior Proposal,” references to 10% in the definition of Acquisition Proposal shall be deemed to be references to “28%.”
(c) The Company shall notify the Purchaser orally and in writing promptly, and in any event within three (3) Business Days, after receipt of any Acquisition Proposal. The written notice shall include the identity of the third party making such Acquisition Proposal, the material terms of the Acquisition Proposal and copies of any written communications and documents setting forth the material terms of such Acquisition Proposal received by the Company from the third party making such Acquisition Proposal or its Representatives or Affiliates, and the Company shall keep the Purchaser reasonably informed of any material changes with respect to such Acquisition Proposal on a prompt basis (and in any event within 24 hours). The Company shall promptly notify the Purchaser orally and in writing upon determination by the Company Board, after consultation with its financial advisors and outside legal counsel, that an Acquisition Proposal is a Superior Proposal. The Company shall not effect a change in the Company Recommendation (whether relating to a Superior Proposal or otherwise) until after the fifth Business Day following the Purchaser’s receipt of written notice (a “Change in Recommendation Notice”) from the Company (i) with respect to a change in the Company Recommendation as a result of the foregoingSuperior Proposal, advising the Purchaser that the Company Board has received a Superior Proposal, specifying the terms and conditions of the Superior Proposal and stating that the Company Board intends to effect a Change in Recommendation and (ii) with respect to a change in the Company Recommendation not relating to a Superior Proposal, specifying in reasonable detail the Intervening Event precipitating the Change in Recommendation and the reason for such change in Company Recommendation. The Company agrees that after providing the Purchaser a Change in Recommendation Notice, during the five-Business Day period specified in the preceding sentence (such period, the “Purchaser Review Period”), the Purchaser will be permitted to propose to the Company revisions to the terms of the transactions contemplated by this Agreement and the other Operative Agreements, and it will take the necessary steps Company and its Representatives will, if requested by the Purchaser, negotiate in good faith with the Purchaser and its Representatives regarding any revisions to inform the individuals or entities referred to above terms of the obligations undertaken transactions contemplated by this Agreement and the other Operative Agreements proposed by the Purchaser.
(d) Nothing contained in this Section 8.9; 8.4 shall prohibit the Company or the Company Board from taking and (cdisclosing to the Company’s stockholders a position with respect to a tender offer by a third party pursuant to Rules 14d-9 and 14e-2(a) that it will notify Parent immediately if any promulgated under the Exchange Act or from making such inquiries or proposals are received bydisclosure to the Company’s stockholders which, any such information in the judgment of the Company Board after receiving advice of outside legal counsel, is requested from, or any such negotiations or discussions are sought reasonably likely to be initiated or continued with, itrequired under applicable Law.
(e) The Purchaser agrees that the provisions of Section 2.5 of the Governance Agreement shall not restrict the Company Board’s consideration of any matter pursuant to this Section 8.4; provided, however, that nothing contained in this the Company may not consummate a transaction prohibited by Section 8.9 shall prohibit the Board of Directors 2.5 of the Company from (i) furnishing information to or entering into discussions or negotiations with, any person or entity that makes or proposes to make an unsolicited bona fide proposal to acquire Governance Agreement without the Company pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, if, and only to the extent that, (A) the Board of Directors prior written consent of the Company determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company provides written 37 43 notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity and (C) the Company keeps Parent promptly informed of the status and all material terms and conditions of any such discussions or negotiations (including identities of parties); and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.9 shall (x) permit the Company to terminate this Agreement (except as specifically provided in Article X hereof), (y) permit the Company to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal), or (z) affect any other obligation of the Company under this AgreementPurchaser.
Appears in 1 contract
Sources: Securities Purchase Agreement (Central European Distribution Corp)
Alternative Proposals. Prior to the Effective DateTime, the Company PanEnergy agrees (a) that neither it nor any of its Subsidiaries shall, and it and they shall direct and use its and their best reasonable efforts to cause its and their respective officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its SubsidiariesSubsidiaries or any of the foregoing) 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 stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities of, the Company or any of its Subsidiaries an Alternative Proposal (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative Proposal"defined below) or engage in any negotiations concerning, or provide any confidential non-public information or data to, or have any discussions with, any person relating to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; (b) 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 it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.98.1; and (c) that it will notify Parent Duke 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 8.9 8.1 shall prohibit the Board of Directors of the Company PanEnergy from (i) furnishing information (pursuant to a confidentiality letter deemed appropriate by the Board of Directors of PanEnergy) to or entering into discussions or negotiations with, any person or entity that makes or proposes to make an unsolicited bona fide proposal or offer to the stockholders of PanEnergy, to acquire the Company PanEnergy pursuant to a merger, consolidation, share purchase, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, if, and only to the extent that, (A) the Board of Directors of the Company PanEnergy determines in good faith upon the advice of outside counsel that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company PanEnergy provides written 37 43 notice to Parent to Duke of the effect identity of the person or entity making the Alternative Proposal and that it is furnishing intends to furnish information to, or entering intends to enter into discussions or negotiations with, such person or entity and entity, (C) the Company PanEnergy keeps Parent promptly Duke informed on a timely basis of the status and all material terms and conditions of any such discussions or negotiations and all terms and conditions thereof and promptly provides Duke with copies of any written inquiries or proposals relating thereto, and (including identities D) in the event that the Board of partiesDirectors of PanEnergy determines to accept any such Alternative Proposal (in accordance with subclause (A) above), PanEnergy provides Duke with at least three days' prior written notice thereof, during which time Duke may make, and in such event, PanEnergy shall in good faith consider, a counterproposal to such Alternative Proposal; and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.9 8.1 shall (x) permit the Company PanEnergy to terminate this Agreement (except as specifically provided in Article X 10 hereof), (y) permit the Company PanEnergy to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company PanEnergy shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative ProposalProposal (other than a confidentiality agreement deemed appropriate by the Board of Directors of PanEnergy)), or (z) affect any other obligation of the Company PanEnergy under this Agreement.. "Alternative Proposal" shall mean any merger, acquisition, consolidation, reorganization, share exchange, tender offer, exchange offer or similar transaction involving PanEnergy or any of PanEnergy's Significant Subsidiaries, or any proposal or offer to acquire in any manner, directly or indirectly, a substantial equity interest in or a substantial portion of the assets of PanEnergy or any of PanEnergy'
Appears in 1 contract
Alternative Proposals. Prior to the Effective Date, the Company agrees (a) that neither it nor any of its Subsidiaries shall, and it and they shall direct and use its and their best efforts to cause its and their respective officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its 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 stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities of, the Company or any of its Significant Subsidiaries (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; (b) 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 it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.9; and (c) that it will notify 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 8.9 shall prohibit the Board of Directors of the Company from (i) furnishing information to or entering into discussions or negotiations with, any person or entity that makes or proposes to make an unsolicited bona fide proposal to acquire the Company pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, if, and only to the extent that, (A) the Board of Directors of the Company determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company provides written 37 43 notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity and (C) the Company keeps Parent promptly informed of the status and all material terms and conditions of any such discussions or negotiations (including identities of parties)) and, if any such proposal or inquiry is in writing, furnishes a copy of such proposal or inquiry to Parent as soon as practicable after the receipt thereof; and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.9 shall (x) permit the Company to terminate this Agreement (except as specifically provided in Article X hereof), (y) permit the Company to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative ProposalProposal (other than a confidentiality agreement in customary form)), or (z) affect any other obligation of the Company under this Agreement.
Appears in 1 contract
Alternative Proposals. Prior to the Effective Date, the Company agrees (a) that neither it nor any of its Subsidiaries shall, and it and they shall direct and use its and their best efforts to cause its and their respective officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its 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 stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities of, the Company or any of its Significant Subsidiaries (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; (b) 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 it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.98.7; and (c) that it will notify 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 8.9 8.7 shall prohibit the Board of Directors of the Company from (i) furnishing information to or entering into discussions or negotiations with, any person or entity that makes or proposes to make an unsolicited bona fide proposal to acquire the Company pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, if, and only to the extent that, (A) the Board of Directors of the Company determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company provides written 37 43 notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity and (C) the Company keeps Parent promptly informed of the status and all material terms and conditions of any such discussions or negotiations (including identities of parties)) and, if any such proposal or inquiry is in writing, furnishes a copy of such proposal or inquiry to Parent as soon as practicable after the receipt thereof; and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.9 shall (x) permit the Company to terminate this Agreement (except as specifically provided in Article X hereof), (y) permit the Company to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal), or (z) affect any other obligation of the Company under this Agreement.18
Appears in 1 contract
Sources: Agreement and Plan of Merger (Columbia Hca Healthcare Corp/)
Alternative Proposals. Prior From the date of this Agreement --------------------- until the rightful termination of this Agreement pursuant to Article VIII of this Agreement, except for continuing the discussions concerning the possible sale of certain Hospitals of which Sellers shall keep Purchaser informed as to the Effective Dateprogress (which discussions shall not result in a binding agreement to sell any such Hospital without the prior written consent of Purchaser), the Company agrees (a) that neither it nor Sellers shall not, and shall not permit any of its Subsidiaries shall, and it and they shall direct and use its and their best efforts to cause its and subsidiaries or their respective employees, officers, directors, employeesagents or representatives, agents and representatives (including, without limitation, any investment banker, attorney directly or accountant retained by it or any of its Subsidiaries) not toindirectly, initiate, solicit or encourage, directly or indirectly, encourage any inquiries or the making proposals or implementation enter into or continue any discussions, negotiations, understandings, arrangements or agreements relating to sale, exchange, transfer or other disposition of any proposal substantial portion (which, for purposes of this Section 4.10, shall include the sale, exchange, transfer or offer other disposition of one or more Hospitals) of assets comprising the Business or the transactions contemplated within this Agreement and the Merger Agreement or the merger, amalgamation, combination or reorganization of any Seller (as such term is defined herein or in the Merger) with or into any other person, corporation, partnership, or entity (including, without limitation, any proposal or offer to its stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase the shareholders of all or any significant portion of the assets or any equity securities of, the Company or any of its Subsidiaries (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "Alternative Proposal") or engage in any negotiations concerningCPC), or provide any confidential assistance, information or data to, or otherwise cooperate or have discussions, with any discussions withother person, any person relating to an Alternative Proposalcorporation, partnership, or release entity in connection with any third party from such inquiry, proposal or transaction. In the event that any obligations under Seller (as such term is defined herein or in the Merger Agreement) receives any existing standstill agreement inquiry, proposal or arrangement relating to any Alternative Proposaloffer within this Section, or otherwise facilitate any effort obtains information that such an inquiry, proposal or attempt to make or implement an Alternative Proposal; (b) that it will offer may be made, then such Seller shall provide Parent with notice thereof immediately cease and cause to be terminated any existing activitiesfollowing the receipt thereof, discussions or negotiations with any parties conducted heretofore with respect to any including the identity of the foregoing, and it will take the necessary steps to inform the individuals prospective purchaser or entities referred to above of the obligations undertaken in this Section 8.9; and (c) that it will notify 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 8.9 shall prohibit the Board of Directors of the Company from (i) furnishing information to or entering into discussions or negotiations with, any person or entity that makes or proposes to make an unsolicited bona fide proposal to acquire the Company pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, if, and only to the extent that, (A) the Board of Directors of the Company determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company provides written 37 43 notice to Parent to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity and (C) the Company keeps Parent promptly informed of the status and all material terms and conditions of any such discussions or negotiations (including identities of parties); and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposal. Nothing in this Section 8.9 shall (x) permit the Company to terminate this Agreement (except as specifically provided in Article X hereof), (y) permit the Company to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative Proposal), or (z) affect any other obligation of the Company under this Agreementsoliciting party.
Appears in 1 contract
Sources: Asset Purchase Agreement (Community Psychiatric Centers /Nv/)
Alternative Proposals. Prior to the Effective DateTime, the Company SnapGear agrees (a) that neither it nor any of its Subsidiaries shall, and it and they shall direct and use its and their best reasonable efforts to cause its and their respective officers, directors, employees, agents and representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any of its 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 stockholders) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities of, the Company SnapGear or any of its Significant Subsidiaries (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "“Alternative Proposal"”) or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person relating to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; (b) 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 it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.97.1; and (c) that it will notify Parent CyberGuard 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 8.9 7.1 shall prohibit the Board of Directors of the Company SnapGear from (i) furnishing information to or entering into discussions or negotiations with, any person or entity that makes or proposes to make an unsolicited bona fide proposal to acquire the Company SnapGear pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, if, and only to the extent that, (Ai) the Board of Directors of the Company SnapGear determines in good faith that such action is required for the Board of Directors to comply with its fiduciary duties to stockholders imposed by law, (Bii) prior to furnishing such information to, or entering into discussions or negotiations with, such person or entity, the Company SnapGear provides written 37 43 notice to Parent CyberGuard to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity entity, and (Ciii) the Company subject to any confidentiality agreement with such person or entity (which SnapGear determined in good faith was required to be executed in order for its Board of Directors to comply with fiduciary duties to stockholders imposed by law), SnapGear keeps Parent promptly CyberGuard informed of the status and all material terms and conditions (not the terms) of any such discussions or negotiations (including identities of parties); and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposalnegotiations. Nothing in this Section 8.9 7.1 shall (x) permit the Company SnapGear to terminate this Agreement (except as specifically provided in Article X 9 hereof), (y) permit the Company SnapGear to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company SnapGear shall not enter into any agreement with any person that provides for, or in any way facilitates, an Alternative ProposalProposal (other than a confidentiality agreement in customary form)), or (z) affect any other obligation of the Company SnapGear under this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Cyberguard Corp)
Alternative Proposals. Prior to From the Effective DateDate until the Closing of the transactions contemplated by, the Company or termination of, this Agreement, each of Seller and UCH agrees (a) that neither it nor any of its Subsidiaries shallshall not, and it and they each shall direct and use its and their best efforts to cause its and their respective officers, directors, employees, agents and representatives (including, without limitation, including any investment banker, attorney or accountant retained by it or any either of its Subsidiariesthem) not to, initiate, solicit or encourage, directly or indirectly, any inquiries or the making or implementation of any proposal or offer (including, without limitation, including any proposal or offer to its stockholdersboard of directors) with respect to a merger, acquisition, consolidation or similar transaction involving, or any purchase of all or any significant portion of the assets or any equity securities of, or membership interests of the Company or any of its Subsidiaries Hospital (any such proposal or offer made prior to the termination of this Agreement (and any subsequent amended proposal or offer made by the same or an affiliated party) being hereinafter referred to as an "“Alternative Proposal") ”), or engage in any negotiations concerning, or provide any confidential information or data to, or have any discussions with, any person Person relating to an Alternative Proposal, or release any third party from any obligations under any existing standstill agreement or arrangement relating to any Alternative Proposal, or otherwise facilitate any effort or attempt to make or implement an Alternative Proposal; (b) 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 of the foregoing, and it will take the necessary steps to inform the individuals or entities referred to above of the obligations undertaken in this Section 8.9Section; and (c) that it will notify Parent 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, provided that nothing contained in this Section 8.9 shall prohibit the Board board of Directors directors, trustees or governors of the Company Seller or UCH from (i) furnishing information to or entering into discussions or negotiations with, any person or entity Person that makes or proposes to make an unsolicited bona fide proposal to acquire the Company Hospital pursuant to a merger, consolidation, share exchange, purchase of a substantial portion of assets, business combination or other similar transaction, if, if and only to the extent that, that (A) the Board relevant board of Directors of the Company directors, trustees or governors determines in good faith that such action is required for the Board of Directors board to comply with its fiduciary duties to stockholders imposed by law, ; (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person Person, Seller or entity, the Company UCH provides written 37 43 notice to Parent Buyer to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person or entity Person, and (C) the Company subject to any confidentiality agreement with such Person (which Seller or UCH determined in good faith was required to be executed in order for its board to comply with fiduciary duties imposed by law), Seller or UCH keeps Parent promptly Buyer informed of the status and all material terms and conditions (not the terms) of any such discussions or negotiations (including identities of parties); and (ii) to the extent applicable, complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Alternative Proposalnegotiations. Nothing in this Section 8.9 shall (x) permit the Company Seller or UCH to terminate this Agreement (except as specifically provided in Article X hereof11), ; (y) permit the Company Seller or UCH to enter into any agreement with respect to an Alternative Proposal during the term of this Agreement (it being agreed that during the term of this Agreement, the Company Seller and UCH shall not enter into any agreement with any person Person that provides for, for or in any way facilitates, an Alternative ProposalProposal (other than a confidentiality agreement in customary form)), or (z) affect any other obligation of the Company Seller or UCH under this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Vanguard Health Systems Inc)