No Negotiation. During the Pre-Closing Period, neither (i) the Company nor the Company Subsidiaries shall, nor (ii) Parent nor the Parent Subsidiary shall, directly or indirectly: (a) solicit or encourage the initiation of any inquiry, proposal or offer from any Person (other than Parent or the Company, as applicable) relating to a possible Acquisition Transaction; (b) participate in any discussions or negotiations or enter into any agreement with, or provide any non-public information to, any Person (other than Parent or the Company, as applicable) relating to or in connection with a possible Acquisition Transaction; or (c) consider, entertain or accept any proposal or offer from any Person (other than Parent and the Company, as applicable) relating to a possible Acquisition Transaction; provided, however, that prior to the adoption of this Agreement by the Company Required Stockholder Vote, this Section 4.4 shall not prohibit the Company from furnishing nonpublic information regarding the Company to, or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Company or its subsidiaries shall have violated any of the provisions set forth in this Section 4.4, (2) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of the Company and its subsidiaries, shall be deemed to constitute a breach of this Section 4.4 by the Company. (d) The Company shall promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest or request, and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed with respect to the status of any such Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification thereto. (e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so. (f) The Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposal. (g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 4 contracts
Sources: Agreement and Plan of Merger and Reorganization (Entropic Communications Inc), Agreement and Plan of Merger and Reorganization (Entropic Communications Inc), Merger Agreement (Entropic Communications Inc)
No Negotiation. During From the Pre-Closing Perioddate hereof until the Closing, neither (i) the Company nor the Company Subsidiaries Purchaser shall, nor (ii) Parent nor the Parent Subsidiary shalland each shall cause its respective Affiliates and its and their respective Representatives not to, directly or indirectly:
: (ai) solicit solicit, propose, encourage or encourage facilitate the initiation or submission of any inquiryindication of interest, proposal or offer from any Person (other than Parent or the Company, as applicablesuch other party to this Agreement) relating to a possible Acquisition Transaction;
Proposal or that would reasonably be expected to lead to a possible Acquisition Proposal; (bii) engage in, continue or otherwise participate in any discussions or negotiations or enter into any agreement agreement, understanding or arrangement with, or provide any non-public information to, any Person (other than Parent or the Purchaser, the Company, as applicableits Affiliates or their respective Representatives) relating to or in connection with a possible Acquisition TransactionProposal or that would reasonably be expected to lead to a possible Acquisition Proposal; or
(ciii) consider, entertain or accept any proposal or offer from any Person (other than Parent and the Company, as applicableany other party to this Agreement or any of its Affiliates) relating to a possible Acquisition Transaction; provided, however, Proposal or that prior would reasonably be expected to the adoption of this Agreement by the Company Required Stockholder Vote, this Section 4.4 shall not prohibit the Company from furnishing nonpublic information regarding the Company to, or entering into discussions with, any Person in response lead to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Company or its subsidiaries shall have violated any of the provisions set forth in this Section 4.4, (2) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent)possible Acquisition Proposal. Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any Each of the Company and the Purchaser shall, and shall cause its subsidiariesrespective Affiliates and its and their respective Representatives to, shall immediately cease and cause to be deemed to constitute a breach of this Section 4.4 by terminated all existing discussions, conversations, negotiations and other communications with any Person (other than the Purchaser or the Company.
(d, as the case may be, its respective Affiliates or their respective Representatives) The Company with respect to any possible Acquisition Proposal or that would reasonably be expected to lead to a possible Acquisition Proposal, and shall promptly (and in no any event later than within 24 hours after of receipt) notify such other party hereto regarding the receipt of any new Acquisition Proposal, any inquiry request for non-public information or indication of interest that could lead to data in connection with an Acquisition Proposal or any request for nonpublic information) advise Parent orally and in writing of any Acquisition Proposal discussions or any inquiry or indication of interest that would reasonably be expected negotiations relating to result in an Acquisition Proposal (including the identity of such Person), in each case, after the Person making or submitting such date hereof and prior to the Closing. For purposes of this Agreement, an “Acquisition Proposal” means any Contract, inquiryoffer, proposal or inquiry relating to, or any indication of interest in, any transaction or requestseries of related transactions involving, and directly or indirectly, (a) any acquisition of all or any material portion of the terms thereofbusiness of the Purchaser or the Company, as the case may be, including by way of equity purchase, asset purchase, merger, consolidation, share exchange, equity issuance, business combination or otherwise, or (b) that is made or submitted any acquisition of beneficial ownership by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed with respect to the status or group of any such Acquisition Proposal, inquiry, indication of interest twenty percent (20%) or request and any modification or proposed modification thereto.
(e) Subject to Section 5.3, the obligation more of the Company outstanding shares of Purchaser Common Stock or Membership Interests or any other securities entitled to solicit vote on the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it election of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as directors of the date of this Agreement with Purchaser or any tender or exchange offer that if consummated would result in any Person that relate or group beneficially owning twenty percent (20%) or more of the outstanding shares of Purchaser Common Stock or any other securities entitled to any Acquisition Proposalvote on the election of directors of the Purchaser.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Creek Road Miners, Inc.), Merger Agreement (Creek Road Miners, Inc.)
No Negotiation. During the Pre-Closing Period, neither (i) the Company nor the Company Subsidiaries shall, nor (ii) Parent nor the Parent Subsidiary shall, directly or indirectly:
(a) solicit Subject to the last sentence of this section, unless and until this Agreement is terminated pursuant to Section 6.4, Seller shall not directly or encourage the initiation of indirectly solicit, initiate, encourage, or entertain any inquiryinquiries or proposals from, discuss or negotiate with, provide any nonpublic information to, or consider any proposal or offer from any Person relating to any business combination involving Amedica or US Spine, or the sale of the Business, the Acquired Assets (other than Parent a sale in the ordinary course of business), or the Company, as applicableManufacturing Facility. Seller shall notify Buyer of any such inquiry or proposal within one (1) relating to a possible Acquisition Transaction;Business Day of receipt thereof.
(b) Notwithstanding anything to the contrary in Section 5.4(a), prior to the Closing Date or the earlier termination of this Agreement, Seller’s Board of Directors, directly or indirectly through any Seller Representative, may (a) participate in negotiations and discussions with any discussions third party who, after the Effective Date, makes a bona fide, unsolicited offer in writing to purchase all of the Acquired Assets (either alone or negotiations or enter into any agreement withtogether with additional assets of Seller) (a “Competing Offer”), or provide any and (b) thereafter may furnish to such third party non-public information to, any Person (other than Parent or the Company, as applicable) relating to or in connection with a possible Acquisition Transaction; or
(c) considerthe Seller pursuant to an executed confidentiality agreement, entertain or accept any proposal or offer from any Person (other than Parent and the Company, as applicable) relating to a possible Acquisition Transaction; provided, however, provided that prior to the adoption of this Agreement by the Company Required Stockholder Vote, this Section 4.4 shall not prohibit the Company from furnishing nonpublic information regarding the Company to, or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any each of the Company or its subsidiaries shall have violated any following conditions has been satisfied: (i) Seller’s Board of the provisions set forth in this Section 4.4, (2) the board of directors of the Company concludes Directors has determined in good faith, after having taken into account the advice of its consultation with outside legal counsel, that failure to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information to, Competing Offer constitutes or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of the Company and its subsidiaries, shall be deemed to constitute a breach of this Section 4.4 by the Company.
(d) The Company shall promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition a Superior Proposal and (including ii) Seller’s Board of Directors has determined in good faith, after consultation with outside legal counsel, the identity failure to take such action would be a violation of the Person making or submitting such Acquisition Proposal, inquiry, indication Board of interest or request, and Director’s fiduciary duties to the terms thereofstockholders of Seller.
(c) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed Seller may terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal (the status “Fiduciary Out”), subject to the requirements of any such Acquisition ProposalSection 5.4(d) and provided that Seller pays, inquiryor causes to be paid, indication to Buyer a cash fee in the amount of interest $300,000 (the “Break Fee”) no later than ten (10) calendar days after Seller provides Buyer with notice of its exercise of its Fiduciary Out or request and any modification or proposed modification theretoSeller exercises its Fiduciary Out, whichever occurs first.
(ed) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents Seller shall not be limited entitled to exercise its Fiduciary Out unless (i) the Seller shall have provided to Buyer at least three (3) Business Days’ prior written notice (the “Notice Period”) of Seller’s intention to take such action, which notice shall specify the material terms and conditions of such Competing Offer (and shall have provided to Buyer a copy of the available proposed transaction agreement to be entered into in respect of such Competing Offer), if available, and (ii) Buyer fails to make within such three (3) Business Day period, a binding proposal to amend or otherwise affected by modify this Agreement that is in the commencement, disclosure, announcement or submission to it good faith judgment of any Acquisition Proposal with respect to it. The Company shall not submit the Board of Directors of Seller at least as favorable to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition ProposalSeller as such Competing Offer.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Asset Purchase Agreement (AMEDICA Corp), Asset Purchase Agreement (AMEDICA Corp)
No Negotiation. During the Pre-Closing Period, neither (i) the Company Company, TopCo, nor the Company Subsidiaries any Member shall, and neither the Company, TopCo, nor (ii) Parent nor any Member shall authorize or permit any Representative or Affiliate of the Parent Subsidiary shallCompany, directly TopCo, or indirectly:
any Member to: (a) solicit solicit, encourage, make or encourage facilitate the initiation or submission of any expression of interest, inquiry, proposal or offer from any Person (other than Parent or the Company, as applicableBuyer) relating to a possible Acquisition Transaction;
; (b) participate in any discussions or negotiations or enter into any agreement agreement, understanding or arrangement with, or provide any non-public information to, any Person (other than Parent Buyer or the Company, as applicableits Representatives) relating to or in connection with a possible Acquisition Transaction; or
or (c) consider, entertain or accept any proposal or offer from any Person (other than Parent and the Company, as applicableBuyer) relating to a possible Acquisition Transaction; provided. The Company, howevereach of TopCo and MidCo, that prior and each Member shall immediately cease and cause to the adoption of this Agreement by the Company Required Stockholder Votebe terminated, this Section 4.4 shall not prohibit the Company from furnishing nonpublic information regarding the Company all existing discussions or negotiations with any Persons conducted with respect to, or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Company or its subsidiaries shall have violated any of the provisions set forth in this Section 4.4, (2) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information could lead to, or entering into discussions witha possible Acquisition Transaction. The Company, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such PersonTopCo, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of the Company and its subsidiaries, shall be deemed to constitute a breach of this Section 4.4 by the Company.
(d) The Company each Member shall promptly (and in no any event later than within 24 hours after of receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic informationthereof) advise Parent notify Buyer orally and in writing of any Acquisition Proposal or any inquiry or inquiry, indication of interest interest, proposal, offer or request for non-public information relating to a possible Acquisition Transaction that would reasonably be expected to result in an Acquisition Proposal is received by the Company, TopCo, or such Member during the Pre-Closing Period, which notice shall include: (including i) the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest interest, proposal, offer or request, and the terms and conditions thereof; and (ii) an accurate and complete copy of all written materials, and an accurate and complete summary of all other non-written communications, in each case that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed are provided in connection with respect to the status of any such Acquisition Proposal, inquiry, indication of interest interest, proposal, offer or request and any modification or proposed modification thereto.
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to itrequest. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposal.
(g) The Company agrees not to release or permit the release of any Person fromCompany, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rightsTopCo, and will use its commercially reasonable efforts each Member agrees that the rights and remedies for noncompliance with this Section 6.4 shall include having such provision specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach or threatened breach shall cause irreparable injury to enforce or cause Buyer and that money damages would not provide an adequate remedy to be enforced each such agreement at the request of ParentBuyer.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (CarGurus, Inc.), Membership Interest Purchase Agreement (CarGurus, Inc.)
No Negotiation. During From the Pre-date of this Agreement through the earlier of the Closing PeriodDate or the date on which this Agreement is earlier terminated pursuant to Article 10, neither (i) the Company Seller nor the Company Subsidiaries shallany of its Subsidiaries, nor (ii) Parent nor the Parent Subsidiary Affiliates or Representatives shall, directly or indirectly:
(a) solicit , solicit, initiate or encourage the initiation of any inquiryinquiries or proposals from, proposal discuss or offer from any Person (other than Parent or the Company, as applicable) relating to a possible Acquisition Transaction;
(b) participate in any discussions or negotiations or enter into any agreement negotiate with, or provide any non-public information toto or consider any inquiries or proposals from, any Person (other than Parent or the Company, as applicableBuyer and its Affiliates and Representatives) relating to any transaction involving the sale of all or any portion of the Business, whether affected by sale of assets, sale of stock, merger or otherwise. Seller shall (i) ensure that its Subsidiaries, Affiliates and Representatives are aware of the provisions of this Section 5.5, (ii) be responsible for any breaches by any such parties of this Section 5.5, and (iii) notify Buyer promptly upon the receipt by it of any inquiries or proposals from any third party relating to any such potential transaction, such notice to include the name of such third party and the material terms and conditions of any such inquiries or proposals. At or prior to Closing, Seller shall request and require the return or destruction of all confidential information concerning the Business or any of the Longhorn Entities made available to any third party (other than Buyer and its Affiliates and Representatives) since January 1, 2010 with respect to or in connection with a possible Acquisition Transaction; or
(c) considerany inquiries, entertain proposals or accept any proposal or offer from any Person (other than Parent and the Company, as applicable) relating access to a possible Acquisition Transaction; provided, however, that information prior to the adoption Closing Date and of a type described in the first sentence of this Agreement by Section 5.5 to the Company Required Stockholder Votefull extent provided in the confidentiality agreement entered into between Seller and/or Longhorn and such third party in connection therewith. In addition, this Section 4.4 Seller shall not prohibit the Company release any such third party from furnishing nonpublic information regarding the Company toany such confidentiality agreement (or any obligation thereunder) or waive, amend or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of alter any of such third party’s obligations thereunder and, at the Company or its subsidiaries shall have violated any reasonable request and expense of Buyer enforce the provisions set forth in this Section 4.4, (2) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity terms of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions against such third party and “standstill” provisions) at least as favorable assign to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent Buyer (to the extent assignable without the consent of such nonpublic information has not been previously furnished by third party) Seller’s rights thereunder as it relates to the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of the Company and its subsidiaries, shall be deemed to constitute a breach of this Section 4.4 by the Company.
(d) The Company shall promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest or request, Business and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed with respect to the status of any such Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification theretoLonghorn Entities.
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposal.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Rowan Companies Inc), Stock Purchase Agreement (Joy Global Inc)
No Negotiation. During (a) Until the Pre-earlier of the Closing Periodor the termination of this Agreement pursuant to ARTICLE X, neither (i) the Company nor the Company Subsidiaries shall, nor (ii) Parent nor the Parent Subsidiary shallSeller shall not, directly or indirectly:
, and shall not authorize or permit the Company or the Other Seller Subsidiaries or any Representative of the foregoing directly or indirectly to, (ai) solicit solicit, initiate, encourage, induce or encourage facilitate the initiation making, submission or announcement of any inquiry, proposal or offer from any Person (other than Parent or the Company, as applicable) relating to a possible an Acquisition Transaction;
Transaction (ban “Acquisition Proposal”) participate in or take any discussions or negotiations or enter into action that could reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any agreement with, or provide any non-public information to, any Person (other than Parent or the Company, as applicable) relating to or in connection with a possible Acquisition Transaction; or
(c) consider, entertain or accept any proposal or offer from any Person (other than Parent and the Company, as applicable) relating to a possible Acquisition Transaction; provided, however, that prior to the adoption of this Agreement by the Company Required Stockholder Vote, this Section 4.4 shall not prohibit the Company from furnishing nonpublic information regarding the Company to, or entering into discussions with, the Other Seller Subsidiaries to any Person in connection with or in response to a Superior Offer an Acquisition Proposal or an inquiry or indication of interest that is submitted could reasonably be expected to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Company or its subsidiaries shall have violated any of the provisions set forth in this Section 4.4lead to an Acquisition Proposal, (2iii) the board of directors of the Company concludes engage in good faith, after having taken into account the advice of its outside legal counsel, that failure discussions or negotiations with any Person with respect to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable lawa potential Acquisition Transaction or an Acquisition Proposal, (3iv) at least two business days prior to furnishing approve, endorse or recommend any such information toAcquisition Proposal, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or (v) enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable any letter of intent or similar document or any Contract contemplating or otherwise relating to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent)Acquisition Transaction. Without limiting the generality of the foregoing, the Company Seller acknowledges and agrees that any violation of or the taking of any action inconsistent with any of the provisions restrictions set forth in the preceding sentence by any Representative of any the Company or the Other Seller Subsidiaries, whether or not such Representative is purporting to act on behalf of the Company and its subsidiariesor the Other Seller Subsidiaries, shall be deemed to constitute a breach of this Section 4.4 5.4 by the CompanySeller.
(db) The Company Seller shall promptly (and in no event later than 24 forty-eight (48) hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent the Purchaser orally and in writing of any Acquisition Proposal or Proposal, any inquiry or indication of interest that would reasonably be expected could lead to result in an Acquisition Proposal or any request for nonpublic information relating to the Company or the Other Seller Subsidiaries (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest or request, and the terms thereof) that is made or submitted by any Person during the Pre-Closing Interim Period. The Company Seller shall keep Parent the Purchaser fully informed with respect to the status of any such Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification thereto.
(ec) Subject to Section 5.3The Seller shall, the obligation of and shall cause the Company to solicit and the Written Consents shall not be limited or otherwise affected by the commencementOther Seller Subsidiaries to, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any existing discussions existing as of the date of this Agreement with any Person (other than the Purchaser) that relate to any Acquisition Proposal.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Montrose Environmental Group, Inc.), Membership Interest Purchase Agreement (Montrose Environmental Group, Inc.)
No Negotiation. During (a) Until such time, if any, as this Agreement is terminated pursuant to Section 9, the Pre-Closing Period, neither (i) Parent Entity and the Company nor the Company Subsidiaries shallwill not, nor (ii) Parent nor the Parent Subsidiary shalland will not permit any of their Representatives to, directly or indirectly:
(a) solicit indirectly solicit, initiate or encourage the initiation of any inquiryinquiries or proposals from, proposal discuss or offer from any Person (other than Parent or the Company, as applicable) relating to a possible Acquisition Transaction;
(b) participate in any discussions or negotiations or enter into any agreement negotiate with, or provide any non-public information to, any Person (other than Parent Buyer) relating to any transaction involving the sale of the business or assets (other than in the Ordinary Course of Business) of the Company, as applicable) relating to or in connection with a possible Acquisition Transaction; or
(c) consider, entertain or accept any proposal or offer from any Person (other than Parent and of the capital stock of the Company, as applicable) relating to a possible Acquisition Transaction; providedor any merger, howeverconsolidation, that prior to the adoption of this Agreement by business combination, or similar transaction involving the Company Required Stockholder Vote("Acquisition Proposal"), except that nothing contained in this Section 4.4 5.4 or any other provision hereof shall not prohibit the Company or the Parent Entity or the Board of Directors of the Parent Entity from furnishing nonpublic information regarding (i) taking and disclosing to the Parent Entity's shareholders a position with respect to a tender or exchange offer by a third party pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act, or (ii) making such disclosure as, in the good faith judgment of the Board of Directors of the Parent Entity, after receiving advice from outside counsel, is required under applicable law; provided that, except as permitted by this Section 5.4, neither the Board of Directors of the Parent Entity nor any Committee thereof shall (x) approve or recommend or propose to approve or recommend any Acquisition Proposal, (y) enter into any agreement with respect to any Acquisition Proposal, or (z) withdraw or modify, in a manner adverse to the Buyer, the approval or recommendation by such Board of Directors or any such committee of this Agreement. The Company will immediately cease any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any of the foregoing.
(b) Notwithstanding the foregoing, the Company toor the Parent Entity may furnish information concerning its business, properties or entering into assets to any corporation, partnership, person or other entity or group pursuant to appropriate confidentiality agreements, and may negotiate and participate in discussions with, any Person in response to and negotiations with such entity or group concerning an Acquisition Proposal if (x) such entity or group has on an unsolicited basis submitted a Superior Offer that is submitted bona fide written proposal to the Company by relating to any such Person (and not withdrawn) if (1) neither transaction which the Company nor any Representative Board of any Directors of the Company or its subsidiaries shall have violated any of the provisions set forth in this Section 4.4, (2) the board of directors of the Company concludes Parent Entity determines in good faith, after having taken into account receiving advice from a nationally recognized investment banking firm, represents a superior transaction to the Contemplated Transactions and which the Board of Directors determines in good faith can be financed and (y) in the opinion of the Board of Directors of the Parent Entity, only after receipt of advice of its from outside legal counselcounsel to the Parent Entity, that the failure to take any provide such action would violate information or access or to engage in such discussions or negotiations could reasonably be expected to cause the fiduciary obligations Board of Directors of the board of directors Parent Entity to violate its fiduciary duties to the shareholders of the Company to the Company’s stockholders Parent Entity under applicable law, law (3an Acquisition Proposal which satisfies clauses (x) at least and (y) being referred to herein as a "Superior Proposal"). The Company shall within two business days prior to furnishing any such information to, or entering into discussions with, such Person, following receipt of a Superior Proposal notify the Company gives Parent written notice Buyer of the identity of such Person and receipt of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent)same. Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of the Company and its subsidiaries, shall be deemed to constitute a breach of this Section 4.4 by the Company.
(d) The Company shall promptly provide to the Buyer any material non-public information regarding the Company provided to any other party which was not previously provided to Buyer. At any time after two business days following notification to Buyer of the Company's intent to do so (and in no event later than 24 hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal (including which notification shall include the identity of the Person making bidder and the material terms and conditions of the proposal) and if the Company has otherwise complied with the terms of this Section 5.4(b), the Board of Directors of the Parent Entity may withdraw or submitting such Acquisition modify its approval or recommendation of the Contemplated Transaction.
(c) In the event of a Superior Proposal, inquiry, indication of interest or request, and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed may enter into an agreement with respect to such Superior Proposal no sooner than three days after giving the status Buyer written notice of any its intention to enter into such Acquisition agreement; provided that the Buyer has not, prior to the expiration of such three-day period, advised the Company, in writing, of its intention to increase the Purchase Price to exceed the value of such Superior Proposal, inquiry, indication . Upon expiration of interest or request and any modification or proposed modification thereto.
(e) Subject to Section 5.3such three-day period without such action by the Buyer, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal may enter into an agreement with respect to it. The Company such Superior Proposal (with the bidder and on terms no less favorable than those specified in such notification), provided it shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement concurrently with any Person that relate to any Acquisition Proposal.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar entering into such agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce pay or cause to be enforced each such agreement at paid to the request of ParentBuyer the amount specified in Section 9.1(v) hereof.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Talton Invision Inc), Asset Purchase Agreement (Communications Central Inc)
No Negotiation. During From the Pre-date of this Agreement through the earlier of the Closing PeriodDate or the date on which this Agreement is earlier terminated pursuant to Article 10, neither (i) the Company nor the Company Subsidiaries shall, nor (ii) Parent nor the Parent Subsidiary any of its Subsidiaries, Affiliates or Representatives shall, directly or indirectly:
(a) solicit , solicit, initiate or encourage the initiation of any inquiryinquiries or proposals from, proposal discuss or offer from any Person (other than Parent or the Company, as applicable) relating to a possible Acquisition Transaction;
(b) participate in any discussions or negotiations or enter into any agreement negotiate with, or provide any non-public information toto or consider any inquiries or proposals from, any Person (other than Parent or the Company, as applicableBuyer and its Affiliates and Representatives) relating to any transaction involving the sale of all or any portion of the Business, whether affected by sale of assets, sale of stock, merger or otherwise. Parent shall (i) ensure that its Subsidiaries, Affiliates and Representatives are aware of the provisions of this Section 5.5, (ii) be responsible for any breaches by any such parties of this Section 5.5, and (iii) notify Buyer promptly upon the receipt by it of any inquiries or proposals from any third party relating to any such potential transaction, such notice to include the name of such third party and the material terms and conditions of any such inquiries or proposals. At or prior to Closing, Parent shall request and require the return or destruction of all confidential information concerning the Business or any Rodeo Entity made available to any third party (other than Buyer and its Affiliates and Representatives) since June 22, 2011 with respect to or in connection with a possible Acquisition Transaction; or
(c) considerany inquiries, entertain proposals or accept any proposal or offer from any Person (other than Parent and the Company, as applicable) relating access to a possible Acquisition Transaction; provided, however, that information prior to the adoption Closing Date and of a type described in the first sentence of this Agreement by Section 5.5 to the Company Required Stockholder Votefull extent provided in the confidentiality agreement entered into between Parent, this Section 4.4 Seller and/or any Rodeo Entity and such third party in connection therewith. In addition, Parent shall not prohibit the Company release any such third party from furnishing nonpublic information regarding the Company toany such confidentiality agreement (or any obligation thereunder) or waive, amend or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of alter any of such third party’s obligations thereunder and, at the Company or its subsidiaries shall have violated any reasonable request and expense of Buyer enforce the provisions set forth in this Section 4.4, (2) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity terms of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions against such third party and “standstill” provisions) at least as favorable assign to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent Buyer (to the extent assignable without the consent of such nonpublic information has not been previously furnished by third party) Parent’s rights thereunder as it relates to the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of the Company and its subsidiaries, shall be deemed to constitute a breach of this Section 4.4 by the Company.
(d) The Company shall promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest or request, Business and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed with respect to the status of any such Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification theretoRodeo Entities.
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposal.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Joy Global Inc), Stock Purchase Agreement (Cameron International Corp)
No Negotiation. During the Pre-Closing Period, neither (i) neither the Company nor any of the Company Subsidiaries other Acquired Companies shall, nor (ii) Parent nor the Parent Subsidiary Company shall ensure that no officer, director, employee or partner of the Company or any other Acquired Company shall, and (iii) the Company shall use commercially reasonable efforts to ensure that no other Representative of the Company or any other Acquired Company shall, directly or indirectly:
: (a) solicit solicit, knowingly facilitate or knowingly encourage the initiation of any inquiry, proposal or offer from any Person (other than Parent or the Company, as applicableits Representatives acting on behalf of Parent) relating to a possible Acquisition Transaction;
; (b) participate in any discussions or negotiations or enter into any agreement with, or provide any non-public information to, any Person (other than Parent or the Company, as applicableits Representatives acting on behalf of Parent) relating to or in connection with a possible Acquisition Transaction; or
or (c) consider, entertain or accept any proposal or offer from any Person (other than Parent and the Company, as applicableor its Representatives acting on behalf of Parent) relating to a possible Acquisition Transaction; provided, however, that prior to the adoption of this Agreement by the Company Required Stockholder Vote, nothing contained in this Section 4.4 shall not prohibit the Company from furnishing nonpublic information regarding having discussions with any potential joint venture partner or otherwise considering any strategic acquisition so long as (x) the potential joint venture or acquisition transaction does not contemplate the sale or issuance of any securities of any Acquired Company (unless otherwise disclosed to Parent prior to the date hereof) and would be intended primarily to address the needs of the Acquired Companies to find alternative sources of production of wafers for customers of the Acquired Companies during periods where the Acquired Companies lack the manufacturing capacity to fulfill their customers’ orders or forecasted orders for wafers, and (y) the Company to, does not enter into any letter of intent or entering into discussions with, any Person in response other binding agreement with respect to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Company or its subsidiaries shall have violated any foregoing without the prior written consent of the provisions set forth in this Section 4.4Parent, (2) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure not to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent)be unreasonably withheld. Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of the Company and its subsidiaries, shall be deemed to constitute a breach of this Section 4.4 by the Company.
(d) The Company shall promptly (and in no any event later than 24 within 48 hours after of receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic informationthereof) advise notify Parent orally and in writing of any inquiry, proposal or offer relating to a possible Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal Transaction (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest proposal or requestoffer, and the terms thereof) that is made received by the Company, any other Acquired Company, any officer, director, employee or submitted by partner of the Company or any Person other Acquired Company or (to the Knowledge of the Company) any other Representative of any Acquired Company during the Pre-Closing Period. The Company shall keep Parent fully informed with respect Period (in each case excluding any such notification and information regarding any inquiry, request or proposal made on or prior to the status of any date hereof, provided that no additional actions or communication regarding such Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification thereto.
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as of prior proposals occur after the date of this Agreement with any Person that relate to any Acquisition Proposalhereof).
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Merger Agreement (Acquicor Technology Inc), Merger Agreement (Conexant Systems Inc)
No Negotiation. During (a) From the Pre-Closing Perioddate hereof until the Effective Time, neither or unless this Agreement is earlier terminated by SmarterKids or Earlychildhood pursuant to and in compliance with Article VII, Earlychildhood shall not and shall not permit its Subsidiaries nor any of its Members or any of their respective Affiliates, nor will Earlychildhood authorize or permit any of its employees, financial advisors, attorneys, accountants, or other representatives or agents to, directly or indirectly through another person, (i) the Company nor the Company Subsidiaries shallsolicit, nor initiate, facilitate or encourage any inquiries, offers or proposals by or from any Other Party (as defined below) that constitute, or could reasonably be expected to lead to, any Earlychildhood Acquisition Proposal (as defined below), (ii) Parent nor the Parent Subsidiary shallenter into or execute any agreement with respect to an Earlychildhood Acquisition Proposal, directly (iii) engage in or indirectly:
(a) solicit continue negotiations or encourage the initiation of discussions with any inquiryOther Party concerning, proposal or offer from any Person (other than Parent or the Companyor, as applicable) relating except pursuant to a possible Acquisition Transaction;
(b) participate in any discussions or negotiations or enter into any agreement withgovernmental request for information, otherwise communicate or provide any non-public information to any Other Party relating to, any Person Earlychildhood Acquisition Proposal, (iv) make or authorize any public statement, recommendation or solicitation in support of any Earlychildhood Acquisition Proposal, or (v) take any other action inconsistent with its obligations or commitments under this Section 5.4. As used in this Agreement, "Earlychildhood Acquisition Proposal" means any (i) transaction pursuant to which any corporation, partnership, trust, person or other entity or group other than Parent SmarterKids or its Affiliates (an "Other Party"), acquires more than 20% of the Companyoutstanding LLC Interests, as applicable(ii) relating merger or other business combination, recapitalization, restructuring or similar transaction involving Earlychildhood, (iii) other transaction pursuant to or in connection with which any Other Party acquires control of assets of Earlychildhood having a possible Acquisition Transaction; or
(c) consider, entertain or accept any proposal or offer from any Person (other fair market value equal to more than Parent and 20% of the Company, as applicable) relating to a possible Acquisition Transaction; provided, however, that fair market value of all the assets of Earlychildhood immediately prior to the adoption of this Agreement by the Company Required Stockholder Vote, this Section 4.4 shall not prohibit the Company from furnishing nonpublic information regarding the Company tosuch transaction, or entering into discussions with(iv) any public announcement of a proposal, any Person in response plan or intention to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of do any of the Company foregoing or its subsidiaries shall have violated any agreement to engage in any of the provisions set forth in this Section 4.4, (2) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of the Company and its subsidiaries, shall be deemed to constitute a breach of this Section 4.4 by the Company.
(d) The Company shall promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest or request, and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed with respect to the status of any such Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification thereto.
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposal.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Contribution Agreement and Plan of Reorganization and Merger (Smarterkids Com Inc), Contribution Agreement and Plan of Reorganization and Merger (Smarterkids Com Inc)
No Negotiation. During (a) Until the Pre-earlier of the Closing Periodor the termination of this Agreement pursuant to Section 7, neither the Company shall not directly or indirectly, and shall not authorize or permit any Affiliate, Subsidiary or Representative of the Company or any Representative of any such Affiliate, Subsidiary or Representative, directly or indirectly to, (i) solicit, initiate, encourage, induce or facilitate the Company nor the Company Subsidiaries shallmaking, nor (ii) Parent nor the Parent Subsidiary shallinitiation, directly submission or indirectly:
(a) solicit or encourage the initiation announcement of any inquiry, proposal expression of interest or offer from any Person (other than Parent inquiry or the Company, as applicable) relating to a possible Acquisition Transaction;
(b) participate in any discussions or negotiations or enter into any agreement with, or provide any non-public information to, any Person (other than Parent or the Company, as applicable) relating to or in connection with a possible Acquisition Transaction; or
(c) consider, entertain or accept making of any proposal or offer from any Person (other than Parent and the Company, as applicableParent) relating to a possible Strategic Transaction (an “Acquisition Transaction; providedProposal”) or take any action that could reasonably be expected to lead to an Acquisition Proposal, however, that prior to the adoption of this Agreement by the Company Required Stockholder Vote, this Section 4.4 shall not prohibit the Company from furnishing nonpublic (ii) furnish any non-public information regarding the Company to, or entering into discussions with, to any Person in connection with or in response to a Superior Offer an Acquisition Proposal or an inquiry or expression of interest that is submitted could reasonably be expected to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Company or its subsidiaries shall have violated any of the provisions set forth in this Section 4.4lead to an Acquisition Proposal, (2iii) the board of directors of the Company concludes engage in good faith, after having taken into account the advice of its outside legal counsel, that failure discussions or negotiations with any Person with respect to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information toa potential Acquisition Proposal or an Acquisition Proposal, or entering into discussions with(iv) entertain, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, consider or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing accept any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent)Acquisition Proposal. Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of or the taking of any action inconsistent with any of the provisions restrictions set forth in the preceding sentence by any Representative of any the Company, whether or not such Representative is purporting to act on behalf of the Company and its subsidiariesCompany, shall be deemed to constitute a breach of this Section 4.4 4.5 by the Company.
(db) The Company shall promptly (and in no event later than 24 twenty-four (24) hours after receipt by the Company, or by any Affiliate, Subsidiary or Representative of the Company or any Representative of any such Affiliate, Subsidiary or Representative, of any Acquisition Proposal, Proposal or any inquiry or indication expression of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent orally and in writing of any Acquisition Proposal, any inquiry or expression of interest that could lead to an Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected request for nonpublic information relating to result in an Acquisition Proposal the Company (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication expression of interest or request, and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed with respect to the status of any such Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification thereto.
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(fc) The Company shall immediately cease cease, and shall cause each of its Affiliates, Subsidiaries and Representatives and the Representatives of any such Affiliate, Subsidiary or Representative to cease, and cause to be terminated any existing discussions existing as of the date of this Agreement with any Person (other than Parent) that relate to any Acquisition Proposal.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 2 contracts
Sources: Merger Agreement (Applied Micro Circuits Corp), Merger Agreement (Applied Micro Circuits Corp)
No Negotiation. (a) During the Pre-Closing Period, neither (i) the Company nor shall not, directly or indirectly, and shall ensure that their respective Representatives of the Company Subsidiaries shall, nor (ii) Parent nor the Parent Subsidiary shalldo not, directly or indirectly:
(ai) solicit solicit, initiate, induce, facilitate or knowingly encourage the initiation of any inquirymaking, proposal submission or offer from any Person (other than Parent or the Company, as applicable) relating to a possible Acquisition Transaction;
(b) participate in any discussions or negotiations or enter into any agreement with, or provide any non-public information to, any Person (other than Parent or the Company, as applicable) relating to or in connection with a possible Acquisition Transaction; or
(c) consider, entertain or accept any proposal or offer from any Person (other than Parent and the Company, as applicable) relating to a possible Acquisition Transaction; provided, however, that prior to the adoption of this Agreement by the Company Required Stockholder Vote, this Section 4.4 shall not prohibit the Company from furnishing nonpublic information regarding the Company to, or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Company or its subsidiaries shall have violated any of the provisions set forth in this Section 4.4, (2) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of the Company and its subsidiaries, shall be deemed to constitute a breach of this Section 4.4 by the Company.
(d) The Company shall promptly (and in no event later than 24 hours after receipt announcement of any Acquisition Proposal, Proposal or Acquisition Inquiry or take any inquiry or indication of interest action that could would reasonably be expected to lead to an Acquisition Proposal or Acquisition Inquiry;
(ii) furnish any request for nonpublic informationinformation regarding the Company to any Person in connection with or in response to an Acquisition Proposal or Acquisition Inquiry;
(iii) advise Parent orally and engage in writing of discussions or negotiations with any Person with respect to any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest or request, and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed with respect to the status of any such Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification thereto.Inquiry;
(eiv) Subject to Section 5.3approve, the obligation of the Company to solicit the Written Consents shall not be limited endorse or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders recommend any Acquisition Proposal or publicly propose Acquisition Inquiry; or
(v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to do soany Acquisition Transaction.
(fb) The Company shall immediately cease and cause to be terminated any existing discussions existing as of the date of this Agreement with any Person that relate to any Acquisition ProposalProposal or Acquisition Inquiry.
(gc) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement Contract to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause each such agreement to be enforced to the extent requested by Parent. The Company also shall promptly request each Person that has executed a confidentiality or similar agreement within the last 12 months in connection with its consideration of a possible Acquisition Transaction or a possible equity investment in the Company to return to the Company all confidential information heretofore furnished to such agreement at Person by or on behalf of the request of ParentCompany.
Appears in 2 contracts
Sources: Merger Agreement (Poseida Therapeutics, Inc.), Merger Agreement (Poseida Therapeutics, Inc.)
No Negotiation. During (a) Except as specifically set forth in this Section 7.5 hereof, until the Pre-earlier of the Closing Periodor the termination of this Agreement pursuant to Article 12 hereof (the "EXCLUSIVITY PERIOD"), neither (i) the Company Globe nor the Company Subsidiaries shall, nor (ii) Parent nor the Parent Subsidiary Seller shall, directly or indirectly:
, individually or through any of their respective officers, directors, stockholders, employees, representatives, agents, affiliates, or otherwise (acollectively, the "REPRESENTATIVES") initiate, solicit or encourage the initiation of any inquiryencourage, proposal or offer from any Person respond to (other than Parent to say that they are contractually obligated not to respond, and referring such party to public disclosure regarding this Agreement, but shall not otherwise respond, including, without limitation, by way of furnishing non-public information or the Companyassistance) any proposals, as applicable) relating to a possible Acquisition Transaction;
inquiries or offers from any person or entity, including, but not limited to, any stockholder of Globe or Seller (b) participate in any discussions or negotiations "THIRD-PARTY"), or enter into any confidentiality agreement, due diligence agreement, letter of intent, purchase agreement, merger agreement withor other arrangement, regarding any proposed sale of all or provide any non-public information toportion of the Acquired Assets or control thereof, any Person (other than Parent whether by means of a sale or the Companyexchange of shares, as applicable) relating to sale of assets, whether in whole or in connection with a possible Acquisition Transaction; or
part, merger, recapitalization, liquidation or otherwise (c) consider, entertain or accept any proposal or offer from any Person (other than Parent and the Company, "THIRD-PARTY ACQUISITION"). Except as applicable) relating to a possible Acquisition Transaction; provided, however, that prior to the adoption of this Agreement by the Company Required Stockholder Vote, this Section 4.4 shall not prohibit the Company from furnishing nonpublic information regarding the Company to, or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Company or its subsidiaries shall have violated any of the provisions specifically set forth in this Section 4.47.5, during the Exclusivity Period, neither Globe nor Seller shall have, and shall take reasonable efforts to cause their Representatives not to have, any discussions, conversations, negotiations or other communications relating to any Third-Party Acquisition with any Third-Party expressing interest therein, and shall immediately discontinue negotiations with any Third-Party with which it heretofore has engaged in negotiations or discussions regarding any Third-Party Acquisition (2an "EXISTING POTENTIAL ACQUIROR"). During the Exclusivity Period, Globe and Seller immediately shall notify Buyer of all terms of any written inquiry, contact, communication, or proposal by any Third-Party with respect to any Third-Party Acquisition that is received by either of them or any of their Representatives (including the response thereto), and promptly (within 72 hours of receipt) shall provide Buyer with a copy of any such written inquiry, contact, communication or proposal. With respect to any oral inquiry, contact, communication or proposal, Globe and Seller shall document the board of directors same in writing (including the response thereto) and reasonably promptly provide Buyer with a copy of the Company concludes in good faith, after having taken into account the advice same. Seller agrees that: if this Agreement is terminated by Seller as a result of its outside legal counselacceptance of a Superior Proposal, that failure then upon the earlier of such termination or acceptance, Globe and Seller immediately shall become obligated to take any such action would violate pay and shall pay to Buyer by wire transfer (in immediately available funds) liquidated damages in the fiduciary obligations amount of One Million Dollars ($1,000,000) (the "FEE"), which Globe and Seller acknowledge is reasonable under the circumstances and designed to compensate Buyer for the lost opportunity to consummate the Contemplated Transactions. This Fee will serve as the exclusive remedy to Buyer hereunder in the event of payment required as a result of the board arrangements set forth herein, including, but not limited to, Buyer's damages relative to its efforts, expenses and costs incurred in evaluating the Contemplated Transactions. The parties acknowledge that the foregoing provisions do not necessarily require Globe or Seller to provide Buyer a written summary of directors of the Company on-going discussions with a third party, nor shall Seller be required to document to Buyer any oral inquiry, contact, communication or proposal that does not materially change any inquiry, contact, communication or proposal previously provided by Buyer.
(b) The parties acknowledge that prior to the Company’s stockholders under applicable lawClosing, (3) at least two business days prior in response to furnishing any such information to, or entering into discussions with, such Person, a bona fide unsolicited written proposal for a Third-Party Acquisition that did not result from the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of the Company and its subsidiaries, shall be deemed to constitute a breach of this Section 4.4 7.5 (a "THIRD-PARTY PROPOSAL") and following delivery to Buyer of notice and a copy of the Third-Party Proposal in compliance with its obligations under Section 7.5 hereof, Globe and Seller may participate in discussions or negotiations with or furnish information (pursuant to a confidentiality agreement with customary terms comparable to those in place with Buyer or already in place with regard to Existing Potential Acquirors) to any Third-Party which makes a bona fide written Third-Party Proposal if, and only if, prior to taking such action: (A) a majority of Globe's Board of Directors determines in good faith (after consultation with its financial advisors) that the transactions contemplated by the Company.
(d) The Company shall promptly (such Third-Party Proposal are capable of being completed and in no event later than 24 hours after receipt of any Acquisition Proposal, any inquiry that such Third-Party Proposal is or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would is reasonably be expected to result in an Acquisition a Superior Transaction (as defined herein) and (B) a majority of Globe's Board of Directors determines in good faith (after receiving the advice of outside legal counsel) that the failure to pursue such Superior Proposal would likely result in a reasonable possibility of a breach of their fiduciary duties as directors under applicable law and (including C) Sellers comply in all material respects with the information and notice obligations set forth in this Section 7.5.
(c) For purposes of this Agreement, "SUPERIOR PROPOSAL" means a bona fide Third-Party Proposal to purchase at least a majority of the outstanding equity securities of either Globe or Seller pursuant to a stock purchase agreement, tender offer or exchange offer or to effect any merger, consolidation, business combination or sale of all or substantially all of the Acquired Assets, recapitalization or similar transaction involving the Seller, on terms which a majority of Globe's Board of Directors determines in good faith (after consultation with its financial advisors) to be superior to Globe and its shareholders (in their capacity as shareholders) from a financial point of view (taking into account, among other things, all legal, financial, regulatory and other aspects of the proposal and identity of the Person making or submitting such Acquisition Proposalofferor) as compared to (i) the transactions contemplated hereby and (ii) any alternative proposed by Buyer in accordance with Section 7.5(d) (taking into account the same factors, inquiry, indication including whether it is reasonably capable of interest or request, and the terms thereofbeing consummated) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed with respect to the status of (any such Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification theretotransaction being referred to herein as a "SUPERIOR TRANSACTION").
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposal.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 1 contract
No Negotiation. During (a) Until such time, if any, as this Agreement is terminated pursuant to Section 10, or the Pre-Closing Periodconditions set forth in Section 7.5(b) of this Agreement occur, neither (i) the Company nor any of the Company Subsidiaries shallSellers will, nor (ii) Parent nor the Parent Subsidiary shallor cause their respective representatives to, directly or indirectly:
(a) solicit indirectly solicit, initiate, or encourage the initiation of any inquiryinquiries or proposals from, proposal discuss or offer from any Person (other than Parent or the Company, as applicable) relating to a possible Acquisition Transaction;
(b) participate in any discussions or negotiations or enter into any agreement negotiate with, or provide any non-public information to, or consider the merits of any Person inquiries or proposals from, any person or entity (other than Parent Buyer) relating to any transaction involving the sale of the business or assets of the Company, or any of the capital shares of the Company, or any merger, consolidation, business combination, or similar transaction involving the Company. The activities described in this Section 7.5(a) shall be referred to as applicable"Sellers' Negotiations."
(b) relating If the Closing does not occur, and such failure is due to a breach by any Seller of Section 7.5(a) above, then Seller shall promptly (and in any event within two days of receipt of written notice from Buyer) pay to Buyer by wire transfer of immediately available funds to an account or accounts designated by Buyer (i) a break-up fee of U.S.$1,000,000, plus (ii) all actual out-of-pocket expenses (including all fees and expenses of Buyer's counsel, advisors, accountants and consultants) incurred by Buyer or on its behalf in connection with the transactions contemplated by this Agreement (the payments due under subsections (i) and (ii) hereof shall collectively be referred to herein as the "Break-Up Fee"). The Break-Up Fee shall be Buyer's sole remedy in the event of a possible Acquisition Transaction; or
(cbreach by Seller of Section 7.5(a) consider, entertain or accept any proposal or offer from any Person (other than Parent and the Company, as applicable) relating to a possible Acquisition Transactionabove; provided, however, that prior neither the exercise of nor the failure to exercise Buyer's right to payment under this Section 7.5(b) will limit Buyer in any manner in the enforcement of any other remedies available to it in the event of a breach by any Seller of any other provision of this Agreement.
(c) Notwithstanding anything to the adoption contrary in this Section 7.5, the Company and Sellers and their representatives shall continue to comply with all of the terms of this Agreement and all agreements incorporated by the Company Required Stockholder Votereference, including, but not limited to Section 11 of this Section 4.4 shall not prohibit the Company from furnishing nonpublic information Agreement, regarding the Company to, or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative termination of any of the Company or its subsidiaries shall have violated any of the provisions set forth in this Section 4.4, (2) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, Agreement and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisionsConfidentiality Agreement dated February 2, use restrictions2001, non-solicitation provisions by and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of between the Company and its subsidiaries, shall be deemed to constitute a breach of this Section 4.4 by the CompanyBuyer.
(d) The Company shall promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest or request, and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed with respect to the status of any such Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification thereto.
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposal.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 1 contract
Sources: Share Purchase Agreement (Vasco Data Security International Inc)
No Negotiation. During the Pre-Closing PeriodUntil such time, if any, as this Agreement is terminated pursuant to ARTICLE 10, neither (i) the Company nor any of the Company Subsidiaries shall, nor (ii) Parent nor the Parent Subsidiary or ACAS Holders shall, directly or indirectly:
(a) solicit , solicit, initiate or encourage the initiation of any inquiryinquiries or proposals from, proposal discuss or offer from negotiate with or provide any information to any Person (other than Parent or the Company, as applicableBuyer) relating to a possible Acquisition Transaction;
(b) participate in any discussions transaction involving the sale of the business or negotiations or enter into any agreement with, or provide any non-public information to, any Person (other than Parent or the Company, as applicable) relating to or in connection with a possible Acquisition Transaction; or
(c) consider, entertain or accept any proposal or offer from any Person (other than Parent and the Company, as applicable) relating to a possible Acquisition Transaction; provided, however, that prior to the adoption of this Agreement by the Company Required Stockholder Vote, this Section 4.4 shall not prohibit the Company from furnishing nonpublic information regarding the Company to, or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any assets of the Company or its subsidiaries shall have violated any Subsidiary, or any of the provisions set forth in this Section 4.4, (2) the board of directors capital stock of the Company concludes or any Subsidiary, or any merger, consolidation, business combination or similar transaction involving the Company or any Subsidiary (each, an “Acquisition Proposal”). The Company shall promptly (but in any event within five (5) days) notify the Buyer orally, and confirm in writing, all relevant details relating to Acquisition Proposals that the Company or any Subsidiary or ACAS Holder may receive relating to any of the matters referred to in this Section. Notwithstanding the foregoing, nothing contained in this Agreement shall prevent the Company or its Board of Directors from engaging in any negotiations or discussions with any Person who has made an unsolicited bona fide written Acquisition Proposal, if the Board of Directors of the Company shall have determined in good faith, after having taken into account the advice of consultation with its outside legal counselcounsel and financial advisors, that failure to take any such action would violate is necessary in order for the Board of Directors to comply with its fiduciary obligations of the board of directors of the Company to the Company’s stockholders duties under applicable law, (3) at least two business days prior to furnishing any Law and that such information toAcquisition Proposal will result in, or entering into discussions withcould reasonably be expected to constitute or result in, such Person, a Superior Proposal from the Company gives Parent written notice of party that made the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Personapplicable Acquisition Proposal, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of the Company and its subsidiaries, shall be deemed to constitute a breach of this Section 4.4 by the Company.
(d) The Company shall have informed Buyer promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal (including following the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest or request, and the terms thereof) that is made or submitted taking by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed with respect to the status it of any such Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification theretoaction.
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposal.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 1 contract
No Negotiation. During the Pre-Closing Period, neither (i) each of the Company nor Selling Shareholders shall ensure that none of the Company Subsidiaries Acquired Companies or any of the Selling Shareholders shall, nor (ii) Parent nor and each of the Parent Subsidiary shallSelling Shareholders shall ensure that none of the Acquired Companies or any of the Selling Shareholders shall authorize or permit any Representative of any of the Acquired Companies or the Selling Shareholders to, directly or indirectly:
: (a) solicit or 30 encourage the initiation or submission of any expression of interest, inquiry, proposal or offer from any Person (other than Parent or the Company, as applicablePurchaser) relating to a possible Acquisition Transaction or make or communicate any expression of interest, inquiry, proposed or offer to any Person (other than the Purchaser or its Representatives) relating to or in connection with a possible Acquisition Transaction;
; (b) participate in any discussions or negotiations or enter into any agreement agreement, understanding or arrangement with, or provide any non-public information to, any Person (other than Parent the Purchaser or the Company, as applicableits Representatives) relating to or in connection with a possible Acquisition Transaction; or
or (c) consider, entertain or accept any proposal or offer from any Person (other than Parent and the Company, as applicablePurchaser) relating to a possible Acquisition Transaction; provided, however, that prior to the adoption of this Agreement by the Company Required Stockholder Vote, this Section 4.4 shall not prohibit the Company from furnishing nonpublic information regarding the Company to, or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Company or its subsidiaries shall have violated any of the provisions set forth in this Section 4.4, (2) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (. Except to the extent such nonpublic information has not been previously furnished prohibited by the Company to Parent). Without limiting the generality law, each of the foregoing, Selling Shareholders shall ensure that the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of the Company and its subsidiaries, shall be deemed to constitute a breach of this Section 4.4 by the Company.
(d) The Company shall promptly (and in no any event later than 24 within 48 hours after of receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic informationthereof) advise Parent orally and notify the Purchaser in writing of any expression of interest, inquiry, proposal or offer relating to a possible Acquisition Proposal Transaction that is received by any of the Acquired Companies or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal the Selling Shareholders during the Pre-Closing Period (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest interest, proposal or requestoffer, and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed with respect to the status of any such Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification thereto).
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposal.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 1 contract
Sources: Share Purchase Agreement
No Negotiation. During the Pre-Closing Period, neither (i) the Company nor the Company Subsidiaries shall, nor shall not (ii) Parent nor the Parent and shall cause each Subsidiary shallnot to), directly or indirectly:
(a) solicit or encourage the initiation of any inquiry, proposal or offer from any Person (other than Parent or the Company, as applicableParent) relating to a possible Acquisition Transaction;
(b) participate in any discussions or negotiations or enter into any agreement with, or provide any non-public information to, any Person (other than Parent or the Company, as applicableParent) relating to or in connection with a possible Acquisition Transaction; or
(c) consider, entertain or accept any proposal or offer from any Person (other than Parent and the Company, as applicableParent) relating to a possible Acquisition Transaction; providedPROVIDED, howeverHOWEVER, that prior to except in the adoption event of (i) a breach of this Agreement by the Company Required Stockholder Votewhich would constitute a Material Adverse Effect on the Acquired Companies or (ii) a breach of Section 5.9 of this Agreement by the Company, in the event that Parent fails to advance any funds under the Bridge Facility or under the Interim Facility as provided in Section 5.9 of this Section 4.4 shall not prohibit Agreement, the Company from furnishing nonpublic information regarding shall be permitted to seek and obtain alternate financing in order to enable it to fund its operations in accordance with the Company toOperating Plan (the "Alternate Financing"), or entering into discussions with, and any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Company or its subsidiaries shall have violated any of the provisions other restrictions set forth in this Section 4.4, (2) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information to, 4.2 or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the other provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (this Agreement shall not apply to the extent necessary to permit such nonpublic information has not been previously furnished by Alternate Financing. Prior to or upon the Company closing of such Alternate Financing Transaction, Parent shall release any security interest with respect to Parent). Without limiting the generality assets of the foregoingAcquired Companies, PROVIDED that Parent has been repaid all principal and interest outstanding under the Company acknowledges Bridge Facility and/or Interim Facility and agrees that any violation of any of Parent has no further commitments to lend money to the provisions set forth in Acquired Companies under the preceding sentence by any Representative of any of the Company and its subsidiaries, shall be deemed to constitute a breach of this Section 4.4 by the Company.
(d) Bridge Facility and/or Interim Facility. The Company shall promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise notify Parent orally and in writing of any material inquiry, proposal or offer relating to a possible Acquisition Proposal Transaction that is received by the Company, a Subsidiary or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest or request, and the terms thereof) that is made or submitted by any Person their respective affiliates during the Pre-Closing Period. The Company shall keep Parent fully informed with respect to the status of any such Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification thereto.
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposal.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 1 contract
Sources: Merger Agreement (Internap Network Services Corp/Wa)
No Negotiation. During (a) Between the Pre-Execution Date and the Closing PeriodDate, Seller and Seller Sub agree that neither (i) the Company they nor the Company Subsidiaries any of their respective Affiliates shall, nor (ii) Parent nor the Parent Subsidiary shalland each such Party shall use commercially reasonable efforts to cause their respective Representatives not to, directly or indirectly, take any action to (x) solicit, initiate or facilitate any Acquisition Proposal, (y) as to any such Acquisition Proposal, participate in any way in discussions or negotiations with, or furnish any non-public information to, any Person that has made an Acquisition Proposal or (z) enter into any agreement with respect to any Acquisition Proposal; PROVIDED, however, that, at any time prior to the Closing Date, Seller and Seller Sub shall be permitted to:
(a) solicit or encourage the initiation of any inquiry, proposal or offer from any Person (other than Parent or the Company, as applicable) relating to a possible Acquisition Transaction;
(bi) participate in any discussions or negotiations or enter into any agreement with, or and provide any non-public information to, any Person (other than Parent or the Company, as applicable) relating to or in connection with a possible Acquisition Transaction; or
(c) consider, entertain or accept any proposal or offer from any Person (other than Parent and the Company, as applicable) relating to a possible Acquisition Transaction; provided, however, that prior to the adoption of this Agreement by the Company Required Stockholder Vote, this Section 4.4 shall not prohibit the Company from furnishing nonpublic information regarding the Company to, or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company an Acquisition Proposal by any such Person (and not withdrawn) Person, if (1) neither the Company nor any Representative of any of the Company or its subsidiaries shall have violated any of the provisions set forth in this Section 4.4, (2) the board of directors of Seller reasonably determines that there is a substantial likelihood that such Acquisition Proposal would reasonably be expected to lead to a Superior Proposal;
(ii) if Seller has received an Acquisition Proposal from a third party and the Company concludes board of directors of Seller reasonably determines that such Acquisition Proposal constitutes a Superior Proposal, enter into an agreement with respect to such Acquisition Proposal; and
(iii) take and disclose to Seller's stockholders a position with respect to any tender offer or exchange offer by a third party or amend or withdraw such a position in accordance with Rule 14d-9 and Rule 14e-2 of the Exchange Act.
(b) In the event Seller makes a determination to take any of the actions contemplated under SECTION 6.5(A)(II) with respect to an Acquisition Proposal, Seller shall notify Purchaser of such determination within twenty-four (24) hours of making such determination (a "NOTICE OF SUPERIOR PROPOSAL"), which notification shall state that Seller is prepared to enter into a definitive agreement as to such Superior Proposal and include a summary of the material terms and conditions of such Superior Proposal. During the five (5) Business Day period after Purchaser's receipt of the Notice of Superior Proposal, Purchaser shall have the right, at its sole and absolute discretion, to make an offer that Purchaser believes to be at least as favorable to Seller's stockholders as such Superior Proposal; PROVIDED, that during such five (5) Business Day period, Seller shall negotiate in good faith with Purchaser (to the extent Purchaser wishes to negotiate) to enable Purchaser to make, modify and complete a more favorable offer. Upon receipt of such offer, the board of directors of Seller shall, within two (2) Business Days, determine in good faith, after having taken into account the advice of consultation with its outside financial advisor and legal counsel, as to whether the competing offer continues to constitute a Superior Proposal relative to Purchaser's final offer; PROVIDED, that failure to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company Purchaser acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence event Purchaser terminates this Agreement pursuant to SECTION 10.1(C)(IV) or Seller terminates this Agreement pursuant to SECTION 10.1(B)(III), that concurrently with such termination Seller may enter into a definitive agreement providing for implementation of such Superior Proposal. For the avoidance of doubt, exceeding the purchase price offered under the Superior Proposal by any Representative of any of the Company and its subsidiaries, shall be deemed to constitute a breach of this Section 4.4 by the Company.
(d) The Company shall promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest or request, and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed with respect to the status of any such Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification thereto.
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents dollar amount shall not be limited or otherwise affected a condition to any offer by the commencement, disclosure, announcement or submission to it Purchaser made in accordance with this SECTION 6.5(B) being deemed by Seller's board of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause directors to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposala "more favorable offer.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent."
Appears in 1 contract
No Negotiation. During The Seller agrees that, from the Pre-Closing Perioddate of this Agreement, neither (i) none of the Company nor Seller or any of the Company Subsidiaries shallAcquired Companies, nor (ii) Parent nor the Parent Subsidiary shallor any of their respective directors, officers, Affiliates or Representatives will, directly or indirectly:
indirectly (a) solicit solicit, initiate, facilitate or encourage encourage, (b) engage in any discussions or negotiations with respect to or furnish to any other Person any information connection with, (c) grant any Person access to its properties, assets, books, Contracts, personnel or records in connection with respect to or (d) approve or enter into any agreement or understanding in connection with, in the initiation case of the foregoing clauses (a) through (d), any inquiryproposals, proposal inquiries or offer offers from any Person (other than Parent or the Company, as applicablePurchaser) relating to a possible Acquisition Transaction;
(b) participate in any discussions acquisition, purchase or negotiations similar transaction or enter into business combination involving all or any agreement with, or provide any non-public information to, any Person (other than Parent or of the Company, as applicable) relating to or in connection with a possible Acquisition Transaction; or
(c) consider, entertain or accept any proposal or offer from any Person (other than Parent and the Company, as applicable) relating to a possible Acquisition Transaction; provided, however, that prior to the adoption of this Agreement by the Company Required Stockholder Vote, this Section 4.4 shall not prohibit the Company from furnishing nonpublic information regarding the Company to, or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative Equity Interests of any of the Company Acquired Companies or its subsidiaries shall have violated any all or a material portion of the provisions set forth assets of any Acquired Company (other than the sale of inventory in this Section 4.4, the Ordinary Course of Business) (2) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate proposal, inquiry or offer, an “Alternative Proposal”). The Seller shall, and shall cause the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable lawAcquired Companies and their respective directors, (3) at least two business days prior to furnishing any such information officers, Affiliates and Representatives to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of the Company and its subsidiaries, shall be deemed to constitute a breach of this Section 4.4 by the Company.
(d) The Company shall promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest or request, and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed with respect to the status of any such Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification thereto.
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any discussions all existing as of the date of this Agreement discussions, conversations, negotiations and other communications with any Person that relate (other than the Purchaser) conducted heretofore with respect to any Acquisition Proposal.
(g) The Company agrees not to release of the foregoing and will, as promptly as practicable after the date hereof, secure the return or permit the release destruction of any Person frominformation of the type referenced in clause (b) of this Section 5.10 and terminate any access of the type referenced in clause (c) of this Section 5.10. Prior to the Closing, the Seller shall promptly (and in any event, within three (3) Business Days) notify the Purchaser after receipt by the Seller or to waive any of its Subsidiaries (or permit the waiver any of its or their Representatives) of any provision ofAlternative Proposal or any request for information relating to any Alternative Proposal, which notice shall include the material terms and conditions of any confidentialitysuch Alternative Proposal or request (including, “standstill” if applicable, copies of any written proposals or similar agreement to which offers with the Company is a identity of the third party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parentparties redacted).
Appears in 1 contract
Sources: Stock Purchase Agreement (Platform Specialty Products Corp)
No Negotiation. During the Pre-Closing Period5.6.1 Until such time, if any, as this Agreement is terminated pursuant to Section 9, neither (i) the Company nor the Company Subsidiaries shallSellers will, nor (ii) Parent nor the Parent Subsidiary shall, or permit their Representatives to directly or indirectly:
(a) solicit indirectly solicit, initiate, or encourage the initiation of any inquiryinquiries or proposals from, proposal discuss or offer from any Person (other than Parent or the Company, as applicable) relating to a possible Acquisition Transaction;
(b) participate in any discussions or negotiations or enter into any agreement negotiate with, or provide any non-public information to, or consider the merits of any unsolicited inquiries or proposals from, any Person (other than Parent Open Energy) relating to any transaction involving the sale of the business or assets (other than in the Ordinary Course of Business) of the Company, as applicable) relating to or in connection with a possible Acquisition Transaction; or
(c) consider, entertain or accept any proposal or offer from any Person (other than Parent and of the capital stock of the Company, as applicable) relating to a possible or any merger, consolidation, business combination, or similar transaction involving the Company (any such proposal, an “Acquisition TransactionProposal”); provided, however, that prior to receipt by the adoption Company, in accordance with the DGCL, of affirmative votes or written consents from Company stockholders holding a sufficient number of WaterEye Shares to adopt this Agreement by and the Company Required Stockholder VoteMerger provided for herein, the Company’s Board of Directors may take the foregoing actions described in this Section 4.4 shall not prohibit 5.6 if they have been advised in an opinion of reputable legal counsel that such actions are required to discharge the Company from furnishing nonpublic information regarding Company’s directors’ fiduciary duties under applicable Legal Requirements and the Company to, Company’s Board of Directors concludes in good faith (after consultation with the Company’s financial adviser) that an Acquisition Proposal constitutes or entering into discussions with, any Person is reasonably likely to result in response to a Superior Offer Proposal; provided further, that is submitted the aforementioned right to take the Company foregoing actions in respect of a Superior Proposal shall terminate immediately upon receipt by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Company or its subsidiaries shall have violated agent, in accordance with the DGCL, of affirmative votes or written consents from Company stockholders holding a sufficient number of WaterEye Shares to adopt this Agreement and the Merger provided for herein. The Company will notify the Buyer immediately if any Person makes an Acquisition Proposal; provided further that prompt notice will be delivered by the Company to Buyer upon the determination by the Company’s Board of Directors that any such Acquisition Proposal constitutes a Superior Proposal. The Company has not and will not disclose the existence of this Agreement prior to public disclosure of the provisions Agreement.
5.6.2 Notwithstanding anything to the contrary set forth in this Section 4.4Agreement, (2) Buyer shall have the board right and option, exercisable by Buyer by delivery of directors its written notice to the Company on or before the fifth business day following Buyer’s receipt of written notice from the Company of the determination by its Board of Directors that an Acquisition Proposal constitutes a Superior Proposal, to match the terms and conditions of the Superior Proposal and to effect the acquisition of the Company concludes and/or the other transactions proposed in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate the fiduciary obligations of the board of directors of the Company Superior Proposal on terms and subject to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions conditions set forth in the preceding sentence by Superior Proposal. No modifications or amendments may be made to any Representative of any Superior Proposal after notice has been given to Buyer of the Company existence of such Superior Proposal without affording to Buyer the right and its subsidiariesoption, shall be deemed to constitute a breach of upon terms and in accordance with the conditions set forth above in this Section 4.4 by 5.6.2, to effect a transaction upon the Company.
(d) The Company shall promptly (and in no event later than 24 hours after receipt terms of any Acquisition such Superior Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest or request, and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed with respect to the status of any such Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification theretoas modified.
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposal.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 1 contract
Sources: Merger Agreement (Open Energy Corp)
No Negotiation. (a) During the Pre-period from the date of this Agreement until the earlier of the termination of this Agreement pursuant to Section 9.01 or the Closing PeriodDate, neither (i) the Company nor the Company Subsidiaries shallSeller shall not, nor (ii) Parent nor the Parent Subsidiary shalland shall cause its Affiliates not to, directly or indirectly:
, (ai) solicit solicit, initiate, discuss, or knowingly encourage the initiation submission of any inquiry, contact, proposal or offer from any Person relating specifically to the acquisition of the Business, any Business Product (other than Parent the sale or licensing of Business Products in the ordinary course of business consistent with past practice) or the CompanyAssigned Assets, as applicablewhether by merger, purchase of stock, purchase of assets, exclusive license, or otherwise (any such inquiry, contact, proposal or offer, an “Acquisition Proposal”), (ii) relating negotiate, discuss, or approve any offer or indication of interest with respect to a possible an Acquisition Transaction;
(b) participate in any discussions or negotiations or Proposal, enter into any agreement withor understanding in respect of an Acquisition Proposal or undertake any transactions similar to the foregoing, or provide (iii) furnish any non-public information to, any Person (other than Parent or the Company, as applicable) relating to or in connection with a possible Acquisition Transaction; or
(c) consider, entertain or accept any proposal or offer from any Person (other than Parent and the Company, as applicable) relating to a possible Acquisition Transaction; provided, however, that prior to the adoption of this Agreement by the Company Required Stockholder Vote, this Section 4.4 shall not prohibit the Company from furnishing nonpublic information regarding the Company respect to, or entering into discussions withassist or participate in, any effort or attempt by any Person in response to a Superior Offer that is submitted do or seek to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of do any of the Company or its subsidiaries shall have violated any foregoing in respect of the provisions set forth in this Section 4.4, (2) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent)Acquisition Proposal. Without limiting the generality of the foregoing, the Company Seller acknowledges and agrees that any violation of or the taking of any action inconsistent with any of the provisions restrictions set forth in the preceding sentence by any Representative of any Seller acting on behalf of the Company and its subsidiariesSeller, shall be deemed to constitute a breach of this Section 4.4 6.08(a) by the CompanySeller.
(db) The Company Seller shall promptly (and in no event later than 24 hours one (1) Business Day after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic informationinformation in respect of an Acquisition Proposal) advise Parent notify Purchaser orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected could lead to result in an Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, inquiry or indication of interest or requestinterest, and the material terms thereof) that is made or submitted by any Person during prior to the Pre-Closing PeriodClosing. The Company Seller shall keep Parent fully Purchaser reasonably informed with respect to the status of any such Acquisition Proposal, inquiry, inquiry or indication of interest or request interest, and any material modification or proposed material modification thereto.
(ec) Subject to Section 5.3Seller shall, the obligation of the Company to solicit the Written Consents and shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote cause each of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall Representatives to, immediately cease and cause to be terminated any existing discussions existing as of the date of this Agreement with any Person (other than Purchaser) that relate to any Acquisition Proposal.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 1 contract
No Negotiation. During the Pre-Closing Period, neither (i) the Company nor the any of its directors, officers, employees, shareholders or other Company Subsidiaries shallRepresentatives, nor (ii) Parent nor the Parent Subsidiary shall, directly or indirectly:
(a) solicit or encourage the initiation of any inquiry, proposal or offer from any Person (other than Parent or the Company, as applicableParent) relating to a possible Acquisition Transaction;
(b) participate in any discussions or negotiations or enter into any agreement with, or provide any non-public information to, any Person (other than Parent or the Company, as applicableParent) relating to or in connection with a possible Acquisition Transaction; or
(c) consider, entertain or accept any proposal or offer from any Person (other than Parent and the Company, as applicableParent) relating to a possible Acquisition Transaction; provided, however, that prior to the adoption of this Agreement by the Company Required Stockholder Vote, this Section 4.4 shall not prohibit the Company from furnishing nonpublic information regarding the Company to, or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Company or its subsidiaries shall have violated any of the provisions set forth in this Section 4.4, (2) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of the Company and its subsidiaries, shall be deemed to constitute a breach of this Section 4.4 by the Company.
(d) The Company shall promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise notify Parent orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposal, material inquiry, indication of interest proposal or request, and the terms thereof) offer relating to a possible Acquisition Transaction that is made or submitted received by any Person the Company during the Pre-Closing Period. The Notwithstanding the foregoing provisions provisions of this Section 4.3 above, if at any time prior to the approval of this Agreement and the Merger by the shareholders of the Company, the Board of Directors of the Company shall keep determines, in good faith after receipt of advice from outside counsel, that the Board's fiduciary duties under applicable law require it to do so, the Company in response to a proposal that has been determined by it to be a Superior Offer that was not solicited by it and that did not otherwise result from a breach of this Section 4.3, and subject to the Company giving Parent fully informed at least two business days written notice of its intention to do so, may (x) furnish information with respect to the status Company to any person making a Superior Offer pursuant to a customary confidentiality agreement containing terms no less restrictive than the terms of any the confidentiality agreement entered into between the Company and Parent, provided that a copy of all such Acquisition Proposalinformation is delivered simultaneously to Parent, inquiryand (y) engage in negotiations regarding such proposal. In the event the Company receives a Superior Offer, indication nothing contained in this Agreement shall prevent the Board of interest or request and any modification or proposed modification thereto.
(e) Subject to Section 5.3, the obligation Directors of the Company to solicit from amending or withdrawing its recommendation of the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit Merger to the vote of Company's shareholders, if the Board determines in good faith, after consultation with outside legal counsel, that such action is required by its stockholders any Acquisition Proposal or publicly propose to do sofiduciary duties under applicable law.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposal.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 1 contract
Sources: Merger Agreement (Messagemedia Inc)
No Negotiation. During the Pre-Closing Period, neither (i) the Company nor the Company Subsidiaries no Seller shall, nor (ii) Parent nor the Parent Subsidiary and each Seller shall ensure that no Representative of such Seller shall, directly or indirectly:
: (a) solicit solicit, knowingly encourage or encourage facilitate the initiation or submission of any expression of interest, inquiry, proposal or offer from any Person (other than Parent or the Company, as applicablePurchaser) relating to a possible Acquisition Transaction;
; (b) participate in any discussions or negotiations or enter into any agreement agreement, understanding or arrangement with, or provide any non-public information to, any Person (other than Parent Purchaser or the Company, as applicableits Representatives) relating to or in connection with a possible Acquisition Transaction; or
or (c) consider, entertain or accept any proposal or offer from any Person (other than Parent and the Company, as applicablePurchaser) relating to a possible Acquisition Transaction; provided, however, that prior to the adoption of this Agreement by the Company Required Stockholder Vote, this Section 4.4 shall not prohibit the Company from furnishing nonpublic information regarding the Company to, or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Company or its subsidiaries shall have violated any of the provisions set forth in this Section 4.4, (2) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of the Company and its subsidiaries, shall be deemed to constitute a breach of this Section 4.4 by the Company.
(d) The Company Each Seller shall promptly (and in no any event later than within 24 hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic informationthereof) advise Parent give Purchaser notice orally and in writing of any inquiry, indication of interest, proposal, offer or request for non-public information relating to a possible Acquisition Proposal Transaction that is received by such Seller or any inquiry or indication Representative of interest that would reasonably be expected to result in an Acquisition Proposal such Seller during the Pre-Closing Period. Such notice shall include (including i) the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest interest, proposal, offer or request, and the terms and conditions thereof, and (ii) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed an accurate and complete copy of (A) all written materials provided in connection with respect to the status of any such Acquisition Proposal, inquiry, indication of interest interest, proposal, offer or request and any modification (B) a summary of all oral communications provided in connection with such inquiry, indication of interest, proposal, offer or proposed modification thereto.
request (e) Subject to Section 5.3except, in the obligation case of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencementclause (ii), disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote extent any of its stockholders any Acquisition Proposal such information is prohibited from being disclosed to Purchaser under the terms of a confidentiality or publicly propose to do so.
(f) The Company shall immediately cease non-disclosure agreement with such Person that is then in effect and cause to be terminated any discussions existing binding on such Seller and was already in place as of the date Agreement Date, in which case such notice will disclose the existence of this Agreement such expression of interest, inquiry, proposal or offer and any of such information with any Person respect thereto that relate to any Acquisition Proposalis not expressly prohibited from being disclosed by the terms of such agreement).
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 1 contract
No Negotiation. During (a) Each of the Company and the Principal Shareholder acknowledges and agrees that during the Pre-Closing Period, Period neither (i) the Company nor the Company Subsidiaries Principal Shareholder shall, nor (ii) Parent nor shall the Parent Subsidiary shallCompany or the Principal Shareholder permit any of the Acquired Corporations or any of their respective Representatives and Associates to, directly or indirectly:
(ai) solicit or encourage the initiation of any inquiry, proposal or offer from any Person (other than Parent or the Company, as applicableParent) relating to a possible Acquisition Transaction;
(bii) participate in any discussions or negotiations or enter into any agreement with, or provide any non-public information toor afford access to the properties, books or records of the Company to any Person (other than Parent or the Company, as applicableits Affiliates) relating to or in connection with a possible Acquisition Transaction; or
(ciii) consider, entertain or accept any proposal or offer from any Person (other than Parent and the Company, as applicableor its Affiliates) relating to a possible Acquisition Transaction; provided, however, that prior to the adoption of this Agreement by the Company Required Stockholder Vote, this Section 4.4 shall not prohibit the Company from furnishing nonpublic information regarding the Company to, or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company by such Person .
(and not withdrawnb) if (1) neither the Company nor any Representative of any of the Company or its subsidiaries shall have violated any of the provisions set forth in this Section 4.4, (2) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any Each of the Company and its subsidiariesthe Principal Shareholder shall, and shall be deemed cause each of the Acquired Corporations and each of their respective Representatives to, immediately discontinue any ongoing discussions or negotiations (other than any ongoing discussions with Parent) relating to constitute a breach of this Section 4.4 by the Company.
(d) The Company possible Acquisition Transaction, and shall promptly (provide Parent with an oral and in no event later than 24 hours after receipt a written description of any Acquisition Proposal, any inquiry or indication expression of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposalinterest, inquiry, indication of interest proposal or request, and the terms thereof) offer relating to a possible Acquisition Transaction that is made received by the Company or submitted by any Person of the Company's Representatives from any person or entity (other than Parent) during the Pre-Closing Period. The Company shall keep Parent fully informed with respect to parties acknowledge that any breach of the status of foregoing provisions by any such Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification thereto.
(e) Subject to Section 5.3, the obligation Representative of the Company to solicit or the Written Consents Principal Shareholder shall not be limited or otherwise affected deemed a breach by the commencementCompany or the Principal Shareholder, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do soas applicable.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposal.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 1 contract
Sources: Merger Agreement (Titan Corp)
No Negotiation. During the Pre-Closing Period, neither (i) each Seller and the Company nor the shall not, and shall ensure that no Acquired Company Subsidiaries and no Representative of any Acquired Company or any Seller shall, nor (ii) Parent nor the Parent Subsidiary shall, directly or indirectly:
: (a) solicit solicit, encourage or encourage facilitate the initiation or submission of any expression of interest, inquiry, proposal or offer from any Person (other than Parent or the Company, as applicablePurchaser) relating to a possible Acquisition Transaction;
; (b) participate in any discussions or negotiations or enter into any agreement agreement, understanding or arrangement with, or provide any non-public information to, any Person (other than Parent Purchaser or the Company, as applicableits Representatives) relating to or in connection with a possible Acquisition Transaction; or
or (c) consider, entertain or accept any proposal or offer from any Person (other than Parent and the Company, as applicablePurchaser) relating to a possible Acquisition Transaction; provided. Promptly (and in any event within three Business Days) after the date of this Agreement, however, the Company shall request each Person (other than Purchaser) that prior to has entered into a confidentiality or similar agreement with an Acquired Company during the adoption 12 months preceding the date of this Agreement by the Company Required Stockholder Vote, this Section 4.4 shall not prohibit the Company from furnishing nonpublic in connection with such Person’s consideration of a possible Acquisition Transaction to return or destroy all confidential information regarding the Company to, or entering into discussions with, any Person in response previously furnished to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative by or on behalf of any of the Company or its subsidiaries shall have violated any of Acquired Companies, in accordance with the provisions set forth in this Section 4.4, (2) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity terms of such Person and of the Company’s intention to furnish information to, confidentiality or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent)similar agreement. Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of the Company and its subsidiaries, shall be deemed to constitute a breach of this Section 4.4 by the Company.
(d) The Company shall promptly (and in no any event later than 24 hours within one Business Day after receipt thereof) give Purchaser written notice of any Acquisition Proposalbona fide written or, any inquiry or to the Knowledge of the Company, oral inquiry, indication of interest interest, proposal, offer or request for non-public information relating to a possible Acquisition Transaction that could lead to an Acquisition Proposal is received by any Acquired Company, or any request for nonpublic information) advise Parent orally and in writing Seller or any Representative of any Acquisition Proposal Acquired Company or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal (including Seller during the Pre-Closing Period. Such notice shall include the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest interest, proposal, offer or request, the material terms and the terms conditions thereof) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed with respect to the status of any such Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification thereto.
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposal.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 1 contract
No Negotiation. (a) During the Pre-Closing Period, neither (i) the Company nor shall not, and shall not authorize or permit any Representative of the Company Subsidiaries shall, nor (ii) Parent nor the Parent Subsidiary shallto, directly or indirectly:
(ai) solicit or encourage the initiation of any inquiry, proposal or offer from any Person (other than Parent or the Company, as applicableParent) relating to a possible Acquisition Transaction;
(bii) participate in any discussions or negotiations or enter into any agreement with, or provide any non-public information to, any Person (other than Parent or the Company, as applicableParent) relating to or in connection with a possible Acquisition Transaction; or
(ciii) consider, entertain or accept any proposal or offer from any Person (other than Parent and the Company, as applicableParent) relating to a possible Acquisition Transaction; provided, however, that prior to the adoption of this Agreement by the Company Required Stockholder Vote, this Section 4.4 shall not prohibit the Company from furnishing nonpublic information regarding the Company to, or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Company or its subsidiaries shall have violated any of the provisions set forth in this Section 4.4, (2) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of the Company and its subsidiaries, shall be deemed to constitute a breach of this Section 4.4 by the Company.
(d) The Company shall promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest or request, and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed with respect to the status of any such Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification thereto.
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any existing discussions existing as of the date of this Agreement with any Person that relate to any Acquisition ProposalTransaction. The Company shall promptly notify Parent in writing of any inquiry, proposal or offer relating to a possible Acquisition Transaction that is received by the Company during the Pre-Closing Period.
(gb) The Nothing in this Agreement shall prevent the Board of Directors of the Company agrees from withholding, withdrawing, amending or modifying its recommendation in favor of the Merger if (i) a Superior Offer (as defined below) is made to the Company and is not withdrawn, (ii) neither the Company nor any of its representatives shall have violated any of the restrictions set forth in Section 4(a), and (iii) the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that, in light of such Superior Offer, the withholding, withdrawal, amendment or modification of such recommendation is required in order for the Board of Directors of the Company to release comply with its fiduciary obligations to the Company and the Company's shareholders under applicable law. Nothing contained in this Section 4.4(b) shall limit the Company's obligation to hold and convene the Company Stockholders' Meeting (regardless of whether the recommendation of the Board of Directors of the Company shall have been withdrawn, amended or permit modified). For purposes of this Agreement, "Superior Offer" shall mean an unsolicited, bona fide written offer made by a third party to consummate any of the release of any Person fromfollowing transactions: (i) a merger, or to waive or permit the waiver of any provision ofconsolidation, any confidentialitybusiness combination, “standstill” recapitalization, liquidation, dissolution or similar agreement transaction involving the Company pursuant to which the Company is a party or under which shareholders of the Company has immediately preceding such transaction hold less than 51% of the equity interest in the surviving or resulting entity of such transaction; (ii) a sale or other disposition by the Company of assets (excluding inventory and used equipment sold in the ordinary course of business) representing in excess of 50% of the fair market value of the Company's business immediately prior to such sale, or (iii) the acquisition by any rightsperson or group (including by way of a tender offer or an exchange offer or issuance by the Company), and will use directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of 50% of the voting power of the then outstanding shares of capital stock of the Company, in each case on terms that the Board of Directors of the Company determines, in its commercially reasonable efforts to enforce or cause judgment (based on a written opinion of an investment bank of nationally recognized reputation) to be enforced each more favorable to the Company shareholders from a financial point of view than the terms of the Merger and the consideration of which reasonably likely exceeds the value of the consideration in the Merger (after taking into account all relevant factors, including any conditions to the Superior Offer, the timing of the consummation of the transaction pursuant to the Superior Offer, the risk of nonconsummation thereof and the need for any required governmental or other consents, filings and approvals); provided, however, that any such agreement at offer shall not be deemed to be a "Superior Offer" if any financing required to consummate the request of Parenttransaction contemplated by such offer is not committed.
Appears in 1 contract
No Negotiation. (a) During the Pre-Closing Period, neither the Acquired Corporations shall not directly or indirectly, and shall not authorize and shall use reasonable efforts not to permit any Representative of any of the Acquired Corporations to directly or indirectly to, (i) solicit, initiate, encourage or induce the Company nor the Company Subsidiaries shallmaking, nor submission or announcement of any Acquisition Proposal, (ii) furnish any information regarding any of the Acquired Corporations to any Person in connection with or in response to an Acquisition Proposal, (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition; notwithstanding the foregoing, the parties agree that the Acquired Corporations shall be liable for any breach of this Section 4.4 by their Representatives. (b) The Company shall promptly notify Parent nor in writing upon the Parent Subsidiary shall, directly or indirectly:
(a) solicit or encourage the initiation Company gaining Knowledge of any inquiry, proposal or offer from any Person (other than Parent or the Company, as applicable) relating to a possible Acquisition Transaction;
(b) participate in any discussions or negotiations or enter into any agreement with, or provide any non-public information to, any Person (other than Parent or the Company, as applicable) relating to or in connection with a possible Acquisition Transaction; or
(c) consider, entertain or accept any proposal or offer from any Person (other than Parent and the Company, as applicable) relating to a possible Acquisition Transaction; provided, however, that prior to the adoption of this Agreement by the Company Required Stockholder Vote, this Section 4.4 shall not prohibit the Company from furnishing nonpublic information regarding the Company to, or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company received by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Company Acquired Corporations or its subsidiaries shall have violated any of their respective affiliates during the provisions set forth in this Section 4.4, (2) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, nonPre-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent)Closing Period. Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of the Company and its subsidiaries, shall be deemed to constitute a breach of this Section 4.4 by the Company.
(d) The Company shall promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest or request, and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed with respect to the status of any such Acquisition Proposal, inquiry, indication of interest or request Proposal and any modification or proposed material modification thereto.
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company also shall not submit promptly request each Person that has executed, within 12 months prior to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement Agreement, a confidentiality agreement in connection with any its consideration of a possible Acquisition or equity investment to return all confidential information heretofore furnished to such Person that relate to any Acquisition Proposal.
(g) The Company agrees not to release by or permit the release on behalf of any Person from, or of the Acquired Corporations to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company extent such request is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each consistent with such agreement at the request of Parentagreement. SECTION 5.
Appears in 1 contract
Sources: Merger Agreement
No Negotiation. During (a) Until the Pre-earlier of the Closing Periodor the termination of this Agreement pursuant to Article VII, neither none of the Company, Parent or Merger Sub (ieach such Person, a “Subject Company”) the Company nor the Company Subsidiaries shall, nor (ii) Parent nor the Parent Subsidiary shall, directly or indirectly:
, and shall not authorize or permit any Representative of the Subject Company directly or indirectly to, (ai) solicit solicit, initiate, encourage, induce or encourage facilitate the initiation making, submission or announcement of any inquiryproposal relating to an Acquisition Transaction (an “Acquisition Proposal”) or take any action that could reasonably be expected to lead to an Acquisition Proposal, proposal or offer from (ii) furnish any information regarding the Subject Company to any Person in connection with or in response to an Acquisition Proposal or an inquiry or indication of interest that could reasonably be expected to lead to an Acquisition Proposal, (other than Parent or the Company, as applicableiii) relating to a possible Acquisition Transaction;
(b) participate engage in any discussions or negotiations with any Person with respect to a potential Acquisition Transaction or an Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal, or (v) enter into any agreement with, letter of intent or provide similar document or any non-public information to, any Person (other than Parent Contract contemplating or the Company, as applicable) otherwise relating to or in connection with a possible Acquisition Transaction; or
(c) consider, entertain or accept any proposal or offer from any Person (other than Parent and the Company, as applicable) relating to a possible Acquisition Transaction; provided, however, that prior to the adoption of this Agreement by the Company Required Stockholder Vote, this Section 4.4 4.5(a) shall not prohibit the Company Parent from furnishing nonpublic information regarding the Company itself to, or entering into discussions with, any Person in response to an Acquisition Proposal that is, or is reasonably likely to result in, a Superior Offer Proposal that is submitted to the Company Parent by such Person (and not withdrawnwithdrawn prior to the furnishing of such information or such discussions) if (1) neither the Company Parent nor any Representative of any of the Company or its subsidiaries Parent shall have violated any of the provisions restrictions set forth in this Section 4.44.5, (2) the Parent’s board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate the fiduciary obligations of the is required in order for Parent’s board of directors of the Company to the Companycomply with its fiduciary obligations to Parent’s stockholders under applicable lawLaw, (3) at least two business days Business Days prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, Parent gives the Company gives Parent written notice of the identity of such Person and of the CompanyParent’s intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company Parent receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, customary limitations on the use restrictions, non-solicitation provisions and “standstill” provisions) at least as disclosure of all nonpublic written and oral information furnished to such Person by or on behalf of Parent and containing terms no less favorable to Parent than the Company as the provisions terms of the Letter of IntentNon-Disclosure Agreement, and (4) at least two business days Business Days prior to furnishing any such nonpublic information to such Person, the Company Parent furnishes such nonpublic information to Parent the Company (to the extent such nonpublic information has not been previously furnished by Parent to the Company to ParentCompany). Without limiting the generality of the foregoing, each of the Company Company, Parent and Merger Sub acknowledges and agrees that any violation of or the taking of any action inconsistent with any of the provisions restrictions set forth in the preceding sentence by any Representative of any the Subject Company whether or not such Representative is purporting to act on behalf of the Subject Company and its subsidiaries, shall be deemed to constitute a breach of this Section 4.4 4.5 by the Subject Company.
(db) The Company Each of the Company, Parent and Merger Sub shall promptly (and in no event later than 24 forty-eight (48) hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent the other parties to this Agreement orally and in writing of any Acquisition Proposal or Proposal, any inquiry or indication of interest that would reasonably be expected could lead to result in an Acquisition Proposal or any request for nonpublic information relating to the Subject Company (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest or request, and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period. The Company Each of the Company, Parent and Merger Sub shall keep Parent the other parties to this Agreement fully informed with respect to the status of any such Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification thereto.
(ec) Subject to Section 5.3, the obligation Each of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencementCompany, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company Parent and Merger Sub shall immediately cease and cause to be terminated any existing discussions existing as of the date of this Agreement with any Person (other than the other parties to this Agreement) that relate to any Acquisition Proposal.
(gd) The Company agrees Notwithstanding anything to the contrary contained in this Agreement, at any time prior to the Effective Time, Parent’s board of directors may terminate this Agreement pursuant to Section 7.1(f) and enter into an acquisition agreement to effect a Superior Proposal if: (i) after the date of this Agreement, an unsolicited, bona fide, written offer to effect a transaction of the type referred to in the definition of the term Superior Proposal is made to Parent and is not to release withdrawn; (ii) such unsolicited, bona fide, written offer was not obtained or permit made as a direct or indirect result of a breach of (or any action inconsistent with) this Agreement, the release of any Person fromNon-Disclosure Agreement, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement under which Parent has any rights or obligations; (iii) at least two Business Days prior to any meeting of Parent’s board of directors at which Parent’s board of directors will consider whether such offer is a Superior Proposal, Parent provides the Company with a written notice specifying the date and time of such meeting, the reasons for holding such meeting, the terms and conditions of the offer that is the basis of the potential action by Parent’s board of directors (including a copy of any draft definitive agreement reflecting the offer), and the identity of the Person making the offer; (iv) Parent’s board of directors determines in good faith, after obtaining and taking into account the advice of an independent financial advisor of nationally recognized reputation and after consultation with outside legal counsel, that such offer constitutes a Superior Proposal; (v) Parent’s board of directors does not effect, or cause Parent to effect, a termination of this Agreement within five Business Days after the Company receives written notice from Parent confirming that Parent’s board of directors has determined that such offer is a party or under which Superior Proposal; (vi) during such five Business Day period, if requested by the Company, Parent engages in good faith negotiations with the Company has any rights, and will use its commercially reasonable efforts to enforce or cause amend this Agreement in such a manner that the offer that was determined to be enforced each such agreement constitute a Superior Proposal no longer constitutes a Superior Proposal; (vii) at the request end of such five Business Day period, such offer has not been withdrawn and continues to constitute a Superior Proposal (taking into account any changes to the terms of this Agreement proposed by the Company as a result of the negotiations required by clause “(vi)” or otherwise); and (viii) Parent’s board of directors determines in good faith, after consultation with outside legal counsel, that, in light of such Superior Proposal, terminating this Agreement and entering into a definitive agreement with respect to such Superior Proposal is required in order for Parent’s board of directors to comply with its fiduciary obligations to Parent’s stockholders under applicable Law (it being understood that in the event of any revisions to the terms of a Superior Proposal, the provisions of this Section 4.5(d) shall apply to such revised offer as if it were a new offer hereunder).
Appears in 1 contract
No Negotiation. During Until such time, if any, as this Agreement is terminated pursuant to Section 11.2, the Pre-Closing PeriodSellers will not, neither (i) and will cause the Company nor Company, the Company Subsidiaries shall, nor (ii) Parent nor the Parent Subsidiary shalland their respective Representatives not to, directly or indirectly:
, (a) solicit solicit, initiate, encourage, respond to, or encourage otherwise facilitate any inquiries or proposals from, or enter into or continue any discussions, negotiations, understandings, arrangements or agreements (other than with the initiation Purchaser) relating to any transaction involving the sale, lease or license of, or any management arrangement relating to, the business or assets (other than in the ordinary course of business) of the Company or any of the Company Subsidiaries, the sale of any of the Company Shares, or any merger, consolidation, business combination or similar transaction involving the Company or any of the Company Subsidiaries (each, an “Alternative Transaction”), (b) provide any assistance, information, documents or data to, or otherwise cooperate or have discussions with, any Person (other the Purchaser) in connection with any inquiry, offer, proposal or offer from agreement relating to a possible Alternative Transaction, (c) afford any access to the personnel, offices, facilities, properties or the books and records of the Company or any of the Company Subsidiaries to any Person (other than Parent the Purchaser) relating to an Alternative Transaction or (d) otherwise assist or facilitate the Companymaking of, as applicableor cooperate in any way regarding any inquiry, offer, proposal or agreement by any Person (other than the Purchaser) relating to a possible Acquisition Alternative Transaction;
(b) participate in . In the event an inquiry, offer, proposal or agreement relating to an Alternative Transaction is received by any discussions or negotiations or enter into Seller, the Company, any agreement withCompany Subsidiary, or provide any non-public information to, any of their respective Representatives from a Person (other than Parent or the CompanyPurchaser), as applicable) relating to or in connection with a possible Acquisition Transaction; or
(c) considerSellers will promptly notify the Purchaser of the receipt of such inquiry, entertain or accept any offer, proposal or offer from any agreement, and will promptly notify the Person (other than Parent and making such inquiry, offer, proposal, or agreement of the Company, as applicable) relating to a possible Acquisition Transaction; provided, however, that prior to the adoption existence of this Agreement by exclusivity covenant (but not disclose the Company Required Stockholder Vote, this Section 4.4 shall not prohibit the Company from furnishing nonpublic information regarding the Company to, or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative identity of any other parties to this Agreement or any terms of the Company or its subsidiaries shall have violated any this Agreement) and of the provisions set forth in this Section 4.4Sellers’, (2) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable lawor such Company Subsidiary’s, (3) at least two business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intentcase may be, and (4) at least two business days prior unwillingness to furnishing discuss any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of the Company and its subsidiaries, shall be deemed to constitute a breach of this Section 4.4 by the Company.
(d) The Company shall promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest or request, and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed with respect to the status of any such Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification thereto.
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as of the date of Alternative Transaction until this Agreement with any Person that relate to any Acquisition Proposalis terminated.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 1 contract
Sources: Stock Purchase Agreement
No Negotiation. During the Pre-Closing Period, neither (i) Neither the Company nor any of the Company Subsidiaries shallSellers, nor (ii) Parent nor any officer, director, Affiliate or agent on behalf of any of the Parent Subsidiary shallforegoing, will, at any time on and after the date hereof and prior to one year from closing, directly or indirectly:
, (a) solicit enter into, or participate in, any discussions or negotiations, or solicit, entertain or encourage any inquiries or proposals, which relate to the initiation acquisition of the Shares or the Company, or the assets, properties, business or securities of the Company (or any inquirymaterial portion thereof), proposal by way of merger, reorganization, sale of assets, stock sale or offer from exchange or otherwise by any Person (other than Parent the Buyer) or the Company, as applicable) relating to a possible Acquisition Transaction;
(b) participate in any discussions or negotiations or enter into any agreement with, or provide any non-public information to, any Person (other than Parent or the Company, as applicableBuyer) relating to any such acquisition transaction. Promptly upon receiving any offer or in connection with inquiry from a possible Acquisition Transaction; or
(c) consider, entertain or accept any proposal or offer from any Person (other than Parent and the Company, as applicableBuyer) relating to a possible Acquisition Transaction; provided, however, that prior to acquire the adoption of this Agreement by the Company Required Stockholder Vote, this Section 4.4 shall not prohibit the Company from furnishing nonpublic information regarding the Company to, Shares or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Company or any of its subsidiaries shall have violated assets, properties or securities, the Sellers will notify Buyer of such offer or inquiry, and, if requested, will provide the Buyer with all details requested by the Buyer. The parties acknowledge and agree that there would be irreparable damage in the event that any of the provisions set forth in of this Section 4.45.02 are not performed in accordance with their specific terms or are otherwise breached. Accordingly, it is agreed that the non-breaching party shall be entitled to an injunction or injunctions (2or other appropriate equitable relief) the board to prevent breaches of directors this Section, and each of the Company concludes in good faith, after having taken into account parties shall have the advice of its outside legal counsel, that failure right to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, specifically enforce this Section and the Company receives from such Person an executed confidentiality agreement containing terms and provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) hereof against the other party in addition to any other remedy to which they may be entitled at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing law or in equity. Notwithstanding any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of the Sellers may take any of the provisions set forth actions otherwise prohibited by clauses (a) and (b) above so long as they are limited to the transfer of Shares not being sold to Buyer, in a manner that does not prevent or interfere with the preceding sentence by any Representative sale of any the Shares to Buyer or the obligations of the Company and its subsidiaries, shall be deemed to constitute a breach of or Sellers under this Section 4.4 by the CompanyAgreement.
(d) The Company shall promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest or request, and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed with respect to the status of any such Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification thereto.
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposal.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 1 contract
No Negotiation. During The Seller shall ensure that, prior to the Pre-Closing Periodearlier of the termination of this Agreement pursuant to Section 8.3 or the Closing, neither (i) none of the Seller, the Company or any Subsidiary, nor any Representative of the Seller, the Company Subsidiaries shall, nor (ii) Parent nor the Parent or any Subsidiary shall, directly or indirectly:
: (ai) solicit or encourage the initiation of any inquiry, proposal proposal, offer or offer other expression of interest from any Person (other than Parent or the Company, as applicableBuyer) relating to a possible Acquisition any Prohibited Transaction;
; (bii) participate in any discussions or negotiations or enter into any agreement with, or provide any non-public information to, any Person (other than Parent or the Company, as applicableBuyer) relating to or in connection with a possible Acquisition any proposed Prohibited Transaction; or
or (ciii) considerenter into any contract relating to any inquiry, entertain proposal, offer or accept any proposal or offer other expression of interest from any Person (other than Parent and the Company, as applicableBuyer) relating to a possible Acquisition any Prohibited Transaction; provided, however, that prior to the adoption . For purposes of this Agreement by Section 5.1(f), a “Prohibited Transaction” means any transaction involving, directly or indirectly, (A) the Company Required Stockholder Vote, this Section 4.4 shall not prohibit sale or other disposition of all or any portion of the Company from furnishing nonpublic information regarding the Company to, business or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any assets of the Company or its subsidiaries shall have violated any Subsidiary (other than in the ordinary course of business), (B) the issuance, sale or other disposition of (I) any capital stock of the Company or any Subsidiary, (II) any option, call, warrant or right (whether or not immediately exercisable) to acquire any capital stock of the Company or any Subsidiary, or (III) any security, instrument or obligation that is or may become convertible into or exchangeable for any capital stock of the Company or any Subsidiary, or (C) any merger, consolidation, business combination, share exchange, reorganization or similar transaction involving the Company or any Subsidiary. If, after the date hereof, any of the provisions set forth in this Section 4.4, (2) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information to, or entering into discussions with, such PersonSeller, the Company gives Parent written notice or any Subsidiary receives any inquiry, proposal, offer or other expression of interest regarding a Prohibited Transaction, the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such PersonSeller shall, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of shall cause the Company and its subsidiariesSubsidiaries to, shall be deemed to constitute immediately notify the Buyer of such fact and provide the Buyer with a breach copy of this Section 4.4 by the Company.
(d) The Company shall promptly (and in no event later than 24 hours after receipt of any Acquisition Proposalsuch inquiry, any inquiry proposal, offer or indication expression of interest that could lead to an Acquisition Proposal or, if such inquiry, proposal, offer or any request for nonpublic information) advise Parent orally and in writing of any Acquisition Proposal or any inquiry or indication expression of interest that would reasonably be expected to result was not made in an Acquisition Proposal (writing, a complete description of the nature and terms thereof, including the identity of the Person making or submitting who made such Acquisition Proposal, inquiry, indication proposal, offer or expression of interest or request, and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed with respect to the status of any such Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification theretointerest.
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposal.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 1 contract
Sources: Stock Purchase Agreement (Caliper Technologies Corp)
No Negotiation. During From the Pre-date of this Agreement through the earlier of the Closing PeriodDate or the date on which this Agreement is earlier terminated, neither (i) the Company Seller nor the Company Subsidiaries shallany of its Subsidiaries, nor (ii) Parent nor the Parent Subsidiary Affiliates or Representatives shall, directly or indirectly:
(a) solicit , solicit, initiate or encourage the initiation of any inquiryinquiries or proposals from, proposal discuss or offer from any Person (other than Parent or the Company, as applicable) relating to a possible Acquisition Transaction;
(b) participate in any discussions or negotiations or enter into any agreement negotiate with, or provide any non-public information toto or consider any inquiries or proposals from, any Person (other than Parent the Buyer and its Affiliates and representatives) relating to any transaction involving the sale of all or any portion of the Company Business, whether affected by sale of assets, sale of equity interests, merger or otherwise. The Seller shall (i) ensure that its subsidiaries, Affiliates and representatives are aware of the provisions of this Section 4.5, and (ii) be responsible for any breaches by any such parties of this Section 4.5. At or prior to Closing, the Seller shall request and require the return or destruction of all confidential information concerning the Company Business or the CompanyCompany made available to any third party (other than the Buyer and its Affiliates and Representatives) since January 1, as applicable) relating 2010 with respect to or in connection with a possible Acquisition Transaction; or
(c) considerany inquiries, entertain proposals or accept any proposal or offer from any Person (other than Parent and the Company, as applicable) relating access to a possible Acquisition Transaction; provided, however, that information prior to the adoption Closing Date and of a type described in the first sentence of this Agreement by Section 4.5 to the full extent provided in the confidentiality agreement entered into between the Seller and/or the Company Required Stockholder Voteand such third party in connection therewith. In addition, this Section 4.4 the Seller shall not prohibit release any such third party from any such confidentiality agreement (or any obligation thereunder) or waive, amend or alter any of such third party’s obligations thereunder and, at the Company from furnishing nonpublic information regarding reasonable request and expense of the Company to, or entering into discussions with, any Person in response to a Superior Offer that is submitted Buyer enforce the terms of such confidentiality agreement against such third party and assign to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Company or its subsidiaries shall have violated any of the provisions set forth in this Section 4.4, (2) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent Buyer (to the extent assignable without the consent of such nonpublic information has not been previously furnished by third party) the Seller’s rights thereunder as it relates to the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges Business and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of the Company and its subsidiaries, shall be deemed to constitute a breach of this Section 4.4 by the Company.
(d) The Company . Nothing in this Agreement shall promptly (and restrict or limit the Seller’s rights to engage in no event later than 24 hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest or request, and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed discussions with respect to the status of Seller or any such Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification thereto.
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal subsidiaries, assets or publicly propose to do sobusinesses, other than the Company.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposal.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 1 contract
No Negotiation. During (a) Except as specifically set forth in this Section 7.5 hereof, until the Pre-earlier of the Closing or the termination of this Agreement pursuant to Article 12 hereof (the "Exclusivity Period"), neither (i) the Company Globe nor the Company Subsidiaries shall, nor (ii) Parent nor the Parent Subsidiary Seller shall, directly or indirectly:
, individually or through any of their respective officers, directors, stockholders, employees, representatives, agents, affiliates, or otherwise (acollectively, the "Representatives") initiate, solicit or encourage the initiation of any inquiryencourage, proposal or offer from any Person respond to (other than Parent to say that they are contractually obligated not to respond, and referring such party to public disclosure regarding this Agreement, but shall not otherwise respond, including, without limitation, by way of furnishing non-public information or the Companyassistance) any proposals, as applicable) relating to a possible Acquisition Transaction;
inquiries or offers from any person or entity, including, but not limited to, any stockholder of Globe or Seller (b) participate in any discussions or negotiations "Third-Party"), or enter into any confidentiality agreement, due diligence agreement, letter of intent, purchase agreement, merger agreement withor other arrangement, regarding any proposed sale of all or provide any non-public information toportion of the Acquired Assets or control thereof, any Person (other than Parent whether by means of a sale or the Companyexchange of shares, as applicable) relating to sale of assets, whether in whole or in connection with a possible Acquisition Transaction; or
part, merger, recapitalization, liquidation or otherwise (c) consider, entertain or accept any proposal or offer from any Person (other than Parent and the Company, "Third-Party Acquisition"). Except as applicable) relating to a possible Acquisition Transaction; provided, however, that prior to the adoption of this Agreement by the Company Required Stockholder Vote, this Section 4.4 shall not prohibit the Company from furnishing nonpublic information regarding the Company to, or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Company or its subsidiaries shall have violated any of the provisions specifically set forth in this Section 4.47.5, during the Exclusivity Period, neither Globe nor Seller shall have, and shall take reasonable efforts to cause their Representatives not to have, any discussions, conversations, negotiations or other communications relating to any Third-Party Acquisition with any Third-Party expressing interest therein, and shall immediately discontinue negotiations with any Third-Party with which it heretofore has engaged in negotiations or discussions regarding any Third-Party Acquisition (2an "Existing Potential Acquiror"). During the Exclusivity Period, Globe and Seller immediately shall notify Buyer of all terms of any written inquiry, contact, communication, or proposal by any Third-Party with respect to any Third-Party Acquisition that is received by either of them or any of their Representatives (including the response thereto), and promptly (within 72 hours of receipt) shall provide Buyer with a copy of any such written inquiry, contact, communication or proposal. With respect to any oral inquiry, contact, communication or proposal, Globe and Seller shall document the board of directors same in writing (including the response thereto) and reasonably promptly provide Buyer with a copy of the Company concludes in good faith, after having taken into account the advice same. Seller agrees that: if this Agreement is terminated by Seller as a result of its outside legal counselacceptance of a Superior Proposal, that failure then upon the earlier of such termination or acceptance, Globe and Seller immediately shall become obligated to take any such action would violate pay and shall pay to Buyer by wire transfer (in immediately available funds) liquidated damages in the fiduciary obligations amount of One Million Dollars ($1,000,000) (the "Fee"), which Globe and Seller acknowledge is reasonable under the circumstances and designed to compensate Buyer for the lost opportunity to consummate the Contemplated Transactions. This Fee will serve as the exclusive remedy to Buyer hereunder in the event of payment required as a result of the board arrangements set forth herein, including, but not limited to, Buyer's damages relative to its efforts, expenses and costs incurred in evaluating the Contemplated Transactions. The parties acknowledge that the foregoing provisions do not necessarily require Globe or Seller to provide Buyer a written summary of directors of the Company on-going discussions with a third party, nor shall Seller be required to document to Buyer any oral inquiry, contact, communication or proposal that does not materially change any inquiry, contact, communication or proposal previously provided by Buyer.
(b) The parties acknowledge that prior to the Company’s stockholders under applicable lawClosing, (3) at least two business days prior in response to furnishing any such information to, or entering into discussions with, such Person, a bona fide unsolicited written proposal for a Third-Party Acquisition that did not result from the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of the Company and its subsidiaries, shall be deemed to constitute a breach of this Section 4.4 7.5 (a "Third-Party Proposal") and following delivery to Buyer of notice and a copy of the Third-Party Proposal in compliance with its obligations under Section 7.5 hereof, Globe and Seller may participate in discussions or negotiations with or furnish information (pursuant to a confidentiality agreement with customary terms comparable to those in place with Buyer or already in place with regard to Existing Potential Acquirors) to any Third-Party which makes a bona fide written Third-Party Proposal if, and only if, prior to taking such action: (A) a majority of Globe's Board of Directors determines in good faith (after consultation with its financial advisors) that the transactions contemplated by the Company.
(d) The Company shall promptly (such Third-Party Proposal are capable of being completed and in no event later than 24 hours after receipt of any Acquisition Proposal, any inquiry that such Third-Party Proposal is or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would is reasonably be expected to result in an Acquisition a Superior Transaction (as defined herein) and (B) a majority of Globe's Board of Directors determines in good faith (after receiving the advice of outside legal counsel) that the failure to pursue such Superior Proposal would likely result in a reasonable possibility of a breach of their fiduciary duties as directors under applicable law and (including C) Sellers comply in all material respects with the information and notice obligations set forth in this Section 7.5.
(c) For purposes of this Agreement, "Superior Proposal" means a bona fide Third-Party Proposal to purchase at least a majority of the outstanding equity securities of either Globe or Seller pursuant to a stock purchase agreement, tender offer or exchange offer or to effect any merger, consolidation, business combination or sale of all or substantially all of the Acquired Assets, recapitalization or similar transaction involving the Seller, on terms which a majority of Globe's Board of Directors determines in good faith (after consultation with its financial advisors) to be superior to Globe and its shareholders (in their capacity as shareholders) from a financial point of view (taking into account, among other things, all legal, financial, regulatory and other aspects of the proposal and identity of the Person making or submitting such Acquisition Proposalofferor) as compared to (i) the transactions contemplated hereby and (ii) any alternative proposed by Buyer in accordance with Section 7.5(d) (taking into account the same factors, inquiry, indication including whether it is reasonably capable of interest or request, and the terms thereofbeing consummated) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed with respect to the status of (any such Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification theretotransaction being referred to herein as a "Superior Transaction").
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposal.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 1 contract
No Negotiation. (a) During the Pre-period from the date of this Agreement through the Closing Periodor the earlier termination of this Agreement pursuant to Section 11 hereof, neither (i) the Company nor the Company Subsidiaries shallwill not, nor (ii) Parent nor the Parent Subsidiary shalland will cause its Affiliates and Representatives not to take, directly or indirectly:
(a) solicit , any action to encourage, initiate or encourage the initiation of any inquiry, proposal or offer from any Person (other than Parent or the Company, as applicable) relating to a possible Acquisition Transaction;
(b) participate engage in any discussions or negotiations or enter into any agreement with, or provide any non-public information to, any Person (other than Parent Purchaser or its Affiliates or Representatives) concerning any purchase of the CompanyShares, any merger, acquisition, consolidation, recapitalization, liquidation, or dissolution involving the Stockholders or Company and its Subsidiaries, any sale of all or substantially all of the assets of Company and its Subsidiaries or similar transaction involving Company and its Subsidiaries (other than assets sold in the Ordinary Course of Business) (each such transaction being referred to herein as applicablea “Proposed Acquisition Transaction”). Company shall, and shall cause its Subsidiaries and their respective Representatives to, terminate any and all negotiations or discussions with any third party regarding any proposal concerning any Proposed Acquisition Transaction.
(b) relating Before responding to any offer of a Proposed Acquisition Transaction (an “Acquisition Proposal”), Company shall (i) promptly notify Purchaser (orally and in writing) if any offer is made, any discussions or negotiations are sought to be initiated, any inquiry, proposal or contact is made, or any information is requested, with respect to any Proposed Acquisition Transaction, (ii) promptly notify Purchaser of the terms of any proposal that it may receive in connection respect of any such Proposed Acquisition Transaction, (iii) promptly provide Purchaser with a possible Acquisition Transaction; orcopy of the material terms of any such offer, if written, or a written summary in reasonable detail of such offer, if not in writing, and (iv) keep Purchaser informed of the status of such offer and the offeror’s efforts and activities with respect thereto.
(c) consider, entertain or accept any proposal or offer from any Person (other than Parent and the Company, as applicable) relating to a possible Acquisition Transaction; provided, however, that prior to the adoption of this Agreement by the Company Required Stockholder Vote, this Section 4.4 shall not prohibit the Company from furnishing nonpublic information regarding the Company to, or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Company or its subsidiaries shall have violated any of the provisions set forth in this Section 4.4, (2) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company hereby acknowledges and agrees that it shall be liable for any violation of any of the provisions set forth in the preceding sentence actions taken by any Representative of any of the Company and its subsidiaries, shall be deemed to constitute a breach Person in violation of this Section 4.4 by the Company.
(d) The Company shall promptly (and in no event later than 24 hours after receipt 6.8. Upon breach of any Acquisition Proposalprovisions of this Section 6.8, in addition to any inquiry other remedies to which Purchaser may be entitled at law or indication in equity, Purchaser shall be entitled to injunctive relief. For the purposes of interest this Section 6.8, the parties agree that could lead to an Acquisition Proposal or any request Purchaser would suffer irreparable harm, no adequate remedy at law would exist for nonpublic information) advise Parent orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest or requestPurchaser, and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed with respect Purchaser’s damages would be difficult to the status of any such Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification theretoascertain.
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposal.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 1 contract
Sources: Merger Agreement (CardioNet, Inc.)
No Negotiation. During (a) From the Pre-Closing Perioddate hereof until the earlier of termination of this Agreement or the Closing, neither (i) Seller and its Representatives will not, and Seller shall cause the Company nor the Company Subsidiaries shall, nor (ii) Parent nor the Parent Subsidiary shalland its Representatives not to, directly or indirectly:
, (ai) initiate, solicit or encourage any inquiries or the initiation making of any inquiryproposal with respect to or (ii) engage or participate in negotiations concerning, proposal provide any nonpublic information or offer from data to, or have any Person (discussions with, any person other than Parent or the Company, as applicable) Buyer relating to a possible Acquisition Transaction;
(b) participate in any discussions or negotiations or enter into any agreement with, or provide any non-public information to, any Person (other than Parent or the Company, as applicable) relating to or in connection with a possible Acquisition Transaction; or
(c) consider, entertain or accept any proposal or offer from any Person (other than Parent and the Company, as applicable) relating to a possible Acquisition TransactionSpa Business Combination; provided, however, that prior to the adoption effective date of the required Seller shareholder vote to adopt and approve this Agreement by the Company Required Stockholder VoteAgreement, this Section 4.4 6.6(a) shall not prohibit the Company Seller from furnishing nonpublic information regarding Seller or the Company Spa Business to, or entering into discussions with, any Person in response to a Superior Offer or an offer that is reasonably expected to lead to a Superior Offer that is submitted to the Company Seller by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Company or its subsidiaries shall have violated any of the provisions set forth in this Section 4.4, (2A) the board of directors of the Company Board concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate is required in order for the Board to comply with its fiduciary obligations of the board of directors of the Company to the CompanySeller’s stockholders shareholders under applicable law, (B) Seller gives Buyer three (3) at least two business days Business Days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the CompanySeller’s intention to furnish information to, or enter into discussions with, such Person, and the Company (C) Seller receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, customary limitations on the use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions disclosure of the Letter of Intent, and (4) at least two business days prior to furnishing any such all nonpublic information furnished to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished Person by the Company to Parent)or on behalf of Seller. Without limiting the generality of the foregoing, the Company Seller acknowledges and agrees that any violation of action inconsistent with any of the provisions set forth in the preceding sentence by any Representative of any of the Company and its subsidiaries, Seller shall be deemed to constitute a breach of this Section 4.4 by the Company.
(d) The Company shall promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest or request, and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed with respect to the status of any such Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification thereto.
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposal.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.6.6
Appears in 1 contract
Sources: Limited Liability Company Membership Interest Purchase Agreement (Britesmile Inc)
No Negotiation. (a) During the Pre-Closing Period, neither the Acquired Corporations shall not directly or indirectly, and shall not authorize and shall use reasonable efforts not to permit any Representative of any of the Acquired Corporations to directly or indirectly to, (i) solicit, initiate, encourage or induce the Company nor the Company Subsidiaries shallmaking, nor submission or announcement of any Acquisition Proposal, (ii) Parent nor furnish any information regarding any of the Parent Subsidiary shallAcquired Corporations to any Person in connection with or in response to an Acquisition Proposal, directly (iii) engage in discussions or indirectly:negotiations with any Person with respect to any Acquisition Proposal, (iv) approve, endorse or recommend any Acquisition Proposal or (v) enter into any letter of intent or similar document or any Contract contemplating or otherwise relating to any Acquisition; notwithstanding the foregoing, the parties agree that the Acquired Corporations shall be liable for any breach of this Section 4.4 by their Representatives.
(ab) solicit or encourage The Company shall promptly notify Parent in writing upon the initiation Company gaining Knowledge of any inquiry, proposal or offer from any Person (other than Parent or the Company, as applicable) relating to a possible Acquisition Transaction;
(b) participate in any discussions or negotiations or enter into any agreement with, or provide any non-public information to, any Person (other than Parent or the Company, as applicable) relating to or in connection with a possible Acquisition Transaction; or
(c) consider, entertain or accept any proposal or offer from any Person (other than Parent and the Company, as applicable) relating to a possible Acquisition Transaction; provided, however, that prior to the adoption of this Agreement by the Company Required Stockholder Vote, this Section 4.4 shall not prohibit the Company from furnishing nonpublic information regarding the Company to, or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company received by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Company Acquired Corporations or its subsidiaries shall have violated any of their respective affiliates during the provisions set forth in this Section 4.4, (2) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, nonPre-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent)Closing Period. Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of the Company and its subsidiaries, shall be deemed to constitute a breach of this Section 4.4 by the Company.
(d) The Company shall promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest or request, and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed with respect to the status of any such Acquisition Proposal, inquiry, indication of interest or request Proposal and any modification or proposed material modification thereto.
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company also shall not submit promptly request each Person that has executed, within 12 months prior to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement Agreement, a confidentiality agreement in connection with any its consideration of a possible Acquisition or equity investment to return all confidential information heretofore furnished to such Person that relate to any Acquisition Proposal.
(g) The Company agrees not to release by or permit the release on behalf of any Person from, or of the Acquired Corporations to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company extent such request is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each consistent with such agreement at the request of Parentagreement.
Appears in 1 contract
No Negotiation. During the Pre-Closing Period, neither (i). Except as specifically set forth in Section 8(E)(ii), (iii), (iv), (v) or (vi) hereof, until the Company nor earlier of the Company Subsidiaries shallClosing or the termination of this Agreement pursuant to Section 14 hereof (the "Exclusivity Period"), nor (ii) Parent nor the Parent Subsidiary shall, Sellers shall not directly or indirectly:
, individually or through any of their respective officers, directors, stockholders, employees, representatives, agents, affiliates, or otherwise (acollectively, the "Representatives") initiate, solicit or encourage the initiation of any inquiryencourage, proposal consider, evaluate, or offer from any Person respond to (other than Parent to say that Seller is contractually obligated not to respond, and referring such party to public disclosure regarding this Agreement, but shall not otherwise respond, including, without limitation, by way of furnishing non-public information or the Companyassistance) any proposals, as applicable) relating to a possible Acquisition Transaction;
inquiries or offers from any person or entity, including, but not limited to, any Tidel stockholder (b) participate in any discussions or negotiations "Third Party"), or enter into any confidentiality agreement, due diligence agreement, letter of intent, purchase agreement, merger agreement withor other arrangement, regarding any proposed sale of all or provide any non-public information toportion of the Purchased Assets or control thereof, any Person (other than Parent whether by means of a sale or the Companyexchange of shares, as applicable) relating to sale of assets, whether in whole or in connection with a possible Acquisition Transaction; or
part, merger, recapitalization, liquidation or otherwise (c) consider, entertain or accept any proposal or offer from any Person (other than Parent and the Company, "Third Party Acquisition"). Except as applicable) relating to a possible Acquisition Transaction; provided, however, that prior to the adoption of this Agreement by the Company Required Stockholder Vote, this Section 4.4 shall not prohibit the Company from furnishing nonpublic information regarding the Company to, or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Company or its subsidiaries shall have violated any of the provisions specifically set forth in this Section 4.4Sections 8(E)(i), (2ii), (iii), (iv), (v) or (vi) hereof, during the board Exclusivity Period, Sellers shall not have, and shall take reasonable efforts to cause their Representatives not to have, any discussions, conversations, negotiations or other communications relating to any Third Party Acquisition with any Third Party expressing interest therein, and shall immediately discontinue negotiations with any Third Party with which it heretofore has engaged in negotiations or discussions regarding any Third Party Acquisition. During the Exclusivity Period, Sellers immediately shall notify Buyer of directors all terms of any written inquiry, contact, communication, or proposal by any Third Party with respect to any Third Party Acquisition that is received by Sellers or any of their Representatives (including Sellers' response thereto), and immediately shall provide Buyer with a copy of any such written inquiry, contact, communication or proposal. With respect to any oral inquiry, contact, communication or proposal, Sellers shall document the same in writing (including Sellers' response thereto) and TIDEL NCR Final 021805 NCR & TIDEL CONFIDENTIAL reasonably promptly provide Buyer with a copy of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, same. Sellers agree that failure if either Seller shall breach and fail to take cure promptly any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of the Company and its subsidiaries, shall be deemed to constitute a breach material provision of this Section 4.4 8(E) and within twelve (12) months thereafter enter into any definitive agreement with a Third Party with whom Sellers breached this Section 8(E) regarding a Third Party Acquisition, then upon the consummation of such acquisition, Sellers immediately shall pay to Buyer by wire transfer (in readily available funds) Two Million Dollars $2,000,000.00 (the Company.
(d) The Company shall promptly ("Fee"), which Sellers acknowledge is reasonable under the circumstances and designed to compensate Buyer for the lost opportunity to consummate the Transaction. This Fee will serve as the exclusive remedy to Buyer hereunder in no the event later than 24 hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal (including the identity a breach by Sellers of the Person making or submitting such Acquisition Proposalexclusivity arrangement set forth herein, including, but not limited to, Buyer's damages relative to its efforts, expenses and costs incurred in evaluating the Transaction. The parties acknowledge that the foregoing provisions do not necessarily require Sellers to provide Buyer a written summary of on-going discussions with a third party, nor shall Seller be required to document to Buyer any oral inquiry, indication of interest contact, communication or request, and the terms thereof) proposal that is made or submitted by does not materially change any Person during the Pre-Closing Period. The Company shall keep Parent fully informed with respect to the status of any such Acquisition Proposal, inquiry, indication of interest contact, communication or request and any modification or proposed modification theretoproposal previously provided by Buyer.
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposal.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 1 contract
No Negotiation. During the Pre-Closing Period, neither (i) the Company nor shall not, and shall cause its Subsidiaries not to, and the Company shall not authorize, encourage, instruct or permit any Representatives of the Company or any of its Subsidiaries shall, nor (ii) Parent nor the Parent Subsidiary shall, directly or indirectly:
to: (a) solicit solicit, or encourage or facilitate the initiation or submission of, any expression of any interest, inquiry, proposal or offer from any Person (other than Parent or and the Company, as applicableMerger Subs) relating to a possible Acquisition Transaction;
; (b) participate in any discussions or negotiations or enter into any agreement agreement, understanding or arrangement with, or provide any non-public information to, any Person (other than Parent or and the Company, as applicableMerger Subs and its and their Representatives) relating to or in connection with a possible Acquisition Transaction; or
or (c) considerentertain, entertain consider or accept any proposal or offer from any Person (other than Parent and the Company, as applicableMerger Subs) relating to a possible Acquisition Transaction; provided. The Company shall, however, that prior to the adoption of this Agreement by the Company Required Stockholder Vote, this Section 4.4 and shall not prohibit the Company from furnishing nonpublic information regarding the Company cause its Subsidiaries to, or entering into discussions withand shall instruct its and their respective Representatives to, immediately cease and cause to be terminated all existing discussions, conversations, negotiations and other communications with any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Company or its subsidiaries shall have violated any of the provisions set forth in this Section 4.4, (2) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information to, or entering into discussions with, such Personother than Parent, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of the Company Merger Subs and its subsidiaries, shall be deemed and their respective Representatives) conducted heretofore with respect to constitute a breach of this Section 4.4 by the Company.
(d) any Acquisition Transaction. The Company shall promptly (and in no any event later than within 24 hours after of receipt thereof) provide Parent with: (i) a written description of any expression of interest, inquiry, proposal or offer relating to a possible Acquisition Proposal, any inquiry or indication of interest Transaction that could lead to an Acquisition Proposal is received by the Company or any request for nonpublic information) advise of its Subsidiaries or by any of its or their respective Representatives from any Person (other than Parent orally and the Merger Subs), including in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal (including such description the identity of the Person making or submitting from which such Acquisition Proposalexpression of interest, inquiry, indication proposal or offer was received (if such disclosure does not violate any confidentiality obligations of interest the Company or requestany of the Company’s Representatives, and the terms thereofas applicable); (ii) that is made a complete summary of each other communication transmitted on behalf of such Person or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed with respect of such Person’s Representatives to the status Company or any of any the Company’s Representatives; and (iii) an accurate and complete copy of all written materials provided in connection with such Acquisition Proposalexpression of interest, inquiry, indication of interest proposal or request and any modification or proposed modification theretooffer.
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposal.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 1 contract
Sources: Merger Agreement (Life360, Inc.)
No Negotiation. During the Pre-Closing Period, neither (i) the Company nor the any of its directors, officers, employees, shareholders or other Company Subsidiaries shallRepresentatives, nor (ii) Parent nor the Parent Subsidiary shall, directly or indirectly:
(a) solicit or encourage the initiation of any inquiry, proposal or offer from any Person (other than Parent or the Company, as applicableParent) relating to a possible Acquisition Transaction;
(b) participate in any discussions or negotiations or enter into any agreement with, or provide any non-public information to, any Person (other than Parent or the Company, as applicableParent) relating to or in connection with a possible Acquisition Transaction; or
(c) consider, entertain or accept any proposal or offer from any Person (other than Parent and the Company, as applicableParent) relating to a possible Acquisition Transaction; provided, however, that prior to the adoption of this Agreement by the Company Required Stockholder Vote, this Section 4.4 shall not prohibit the Company from furnishing nonpublic information regarding the Company to, or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Company or its subsidiaries shall have violated any of the provisions set forth in this Section 4.4, (2) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of the Company and its subsidiaries, shall be deemed to constitute a breach of this Section 4.4 by the Company.
(d) The Company shall promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise notify Parent orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposal, material inquiry, indication of interest proposal or request, and the terms thereof) offer relating to a possible Acquisition Transaction that is made or submitted received by any Person the Company during the Pre-Closing Period. The Notwithstanding the foregoing provisions of this Section 4.3 above, if at any time prior to the approval of this Agreement and the Merger by the shareholders of the Company, the Board of Directors of the Company shall keep determines, in good faith after receipt of advice from outside counsel, that the Board's fiduciary duties under applicable law require it to do so, the Company in response to a proposal that has been determined by it to be a Superior Offer that was not solicited by it and that did not otherwise result from a breach of this Section 4.3, and subject to the Company giving Parent fully informed at least two business days written notice of its intention to do so, may (x) furnish information with respect to the status Company to any person making a Superior Offer pursuant to a customary confidentiality agreement containing terms no less restrictive than the terms of any the confidentiality agreement entered into between the Company and Parent, provided that a copy of all such Acquisition Proposalinformation is delivered simultaneously to Parent, inquiryand (y) engage in negotiations regarding such proposal. In the event the Company receives a Superior Offer, indication nothing contained in this Agreement shall prevent the Board of interest or request and any modification or proposed modification thereto.
(e) Subject to Section 5.3, the obligation Directors of the Company to solicit from amending or withdrawing its recommendation of the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit Merger to the vote of Company's shareholders, if the Board determines in good faith, after consultation with outside legal counsel, that such action is required by its stockholders any Acquisition Proposal or publicly propose to do sofiduciary duties under applicable law.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposal.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 1 contract
No Negotiation. During (a) From the Pre-Closing Perioddate hereof until the earlier of termination of this Agreement or the Closing, neither (i) the Company nor the Company Subsidiaries shall, nor (ii) Parent nor the Parent Subsidiary shallSellers and their Representatives will not, directly or indirectly:
, (ai) initiate, solicit or encourage encourage, or take any other action to facilitate any inquiries or the initiation making of any inquiryproposal with respect to, proposal or offer from (ii) engage or participate in negotiations concerning, provide any Person (nonpublic information or data to, or have any discussions with, any person other than Parent or the Company, as applicable) Buyer relating to a possible Acquisition Transaction;
(b) participate in any discussions or negotiations or enter into any agreement with, or provide any non-public information to, any Person (other than Parent or the Company, as applicable) relating to or in connection with a possible Acquisition Transaction; or
(c) consider, entertain or accept any proposal or offer from any Person (other than Parent and the Company, as applicable) relating to a possible Acquisition TransactionAssociated Center Business Combination; provided, however, that prior to the adoption effective date of the required BSML shareholder vote to adopt and approve this Agreement by the Company Required Stockholder VoteAgreement, this Section 4.4 5.6(a) shall not prohibit the Company BSML from furnishing nonpublic information regarding the Company Sellers to, or entering into discussions with, any Person in response to a Superior Offer or an offer that is reasonably expected to lead to a Superior Offer that is submitted to the Company Sellers by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Company or its subsidiaries shall have violated any of the provisions set forth in this Section 4.4, (2A) the board of directors of the Company Board concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate is required in order for the Board to comply with its fiduciary obligations of the board of directors of the Company to the CompanyBSML’s stockholders shareholders under applicable law, (B) Sellers give Buyer three (3) at least two business days Business Days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s Sellers’ intention to furnish information to, or enter into discussions with, such Person, and the Company receives (C) Sellers receive from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, customary limitations on the use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions disclosure of the Letter of Intent, and (4) at least two business days prior to furnishing any such all nonpublic information furnished to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished Person by the Company to Parent)or on behalf of Sellers. Without limiting the generality of the foregoing, the Company acknowledges Sellers acknowledge and agrees agree that any violation of action inconsistent with any of the provisions set forth in the preceding sentence by any Representative of any of the Company and its subsidiaries, Sellers shall be deemed to constitute a breach of this Section 4.4 5.6 by the CompanySellers. Sellers will promptly notify Buyer of any such inquiry or proposal made by any Person, and will furnish to Buyer a copy of each such inquiry or proposal.
(db) The Company Sellers shall promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead be entitled to an Acquisition Proposal or any request for nonpublic information) advise Parent orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal (including the identity provide a summary of the Person making or submitting such Acquisition Proposalprovisions of Section 5.6 to third parties who, inquiry, indication of interest or request, and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed with respect to the status of any such Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification thereto.
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as of on an unsolicited basis after the date hereof, contact Sellers or their Representatives concerning an Associated Center Business Combination with Sellers so long as Buyer is concurrently notified of this Agreement with any Person that relate to any Acquisition Proposalsuch contact.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 1 contract
No Negotiation. During the Pre-Closing Period, neither (i) each Seller and the Company nor the shall not, and shall ensure that no Acquired Company Subsidiaries shall and shall use reasonable best efforts to ensure no Representative of any Acquired Company or any Seller, respectively, shall, nor (ii) Parent nor the Parent Subsidiary shall, directly or indirectly:
: (a) solicit solicit, knowingly encourage or encourage knowingly facilitate the initiation or submission of any expression of interest, inquiry, proposal or offer from any Person (other than Parent or the Company, as applicablePurchaser) relating to a possible Acquisition Transaction;
; (b) participate in any discussions or negotiations or enter into any agreement agreement, understanding or arrangement with, or provide any non-public information to, any Person (other than Parent Purchaser or the Company, as applicableits Representatives) relating to or in connection with a possible Acquisition Transaction; or
or (c) consider, entertain or accept any proposal or offer from any Person (other than Parent and the Company, as applicablePurchaser) relating to a possible Acquisition Transaction; provided. Promptly (and in any event within two days) after the date of this Agreement, however, the Company shall request each Person that prior to has entered into a confidentiality or similar agreement with an Acquired Company during the adoption twelve (12) months preceding the date of this Agreement by the in connection with such Person’s consideration of a possible Acquisition Transaction or investment in any Acquired Company Required Stockholder Vote, this Section 4.4 shall not prohibit the Company from furnishing nonpublic to return or destroy all confidential information regarding the Company to, or entering into discussions with, any Person in response previously furnished to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative by or on behalf of any of the Company or its subsidiaries shall have violated any of the provisions set forth in this Section 4.4, (2) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate the fiduciary obligations of the board of directors of the Company to Acquired Companies. Sellers and the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information toas applicable, or entering into discussions withshall, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of the Company and its subsidiaries, shall be deemed to constitute a breach of this Section 4.4 by the Company.
(d) The Company shall promptly (and in no any event later than 24 within twenty-four (24) hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic informationthereof) advise Parent give Purchaser notice orally and in writing of any inquiry, indication of interest, proposal, offer or request for non-public information relating to a possible Acquisition Proposal Transaction that is received by any Acquired Company, any Seller or any inquiry Representative of any Acquired Company or indication of interest that would reasonably be expected to result in an Acquisition Proposal Seller during the Pre-Closing Period, as applicable. Such notice shall include: (including i) the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest interest, proposal, offer or request, and (ii) the terms and conditions thereof) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed with respect to the status of any such Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification thereto.
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposal.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 1 contract
No Negotiation. During (a) The Acquired Companies shall not, directly or indirectly, and the Pre-Closing Period, neither (i) Acquired Companies shall ensure that their respective Representatives of the Company nor the Company Subsidiaries shall, nor (ii) Parent nor the Parent Subsidiary shallAcquired Companies do not, directly or indirectly:
(ai) solicit solicit, initiate, induce, facilitate or knowingly encourage the initiation making, submission or announcement of any inquiry, proposal Acquisition Proposal or offer from Acquisition Inquiry or take any Person (other than Parent action that could reasonably be expected to lead to an Acquisition Proposal or the Company, as applicable) relating to a possible Acquisition TransactionInquiry;
(bii) participate furnish any nonpublic information regarding any of the Acquired Companies to any Person in any connection with or in response to an Acquisition Proposal or Acquisition Inquiry;
(iii) engage in discussions or negotiations or enter into any agreement with, or provide any non-public information to, with any Person with respect to any Acquisition Proposal or Acquisition Inquiry;
(other than Parent iv) approve, endorse or the Company, as applicable) relating to recommend any Acquisition Proposal or in connection with a possible Acquisition TransactionInquiry; or
(cv) consider, entertain enter into any letter of intent or accept similar document or any proposal Contract contemplating or offer from any Person (other than Parent and the Company, as applicable) otherwise relating to a possible any Acquisition Transaction; provided, however, that prior to the adoption approval of this Agreement by the Company Required Stockholder VoteApproval, this Section 4.4 4.5 shall not prohibit the Company from furnishing nonpublic information regarding the Company Acquired Companies to, or entering into discussions with, any Person in response to a Superior Offer that is an Acquisition Proposal submitted to the Company by such Person (and not withdrawn) if that is reasonably expected to result in a Superior Offer by such Person (1and not withdrawn) if: (A) neither the Company nor any Representative of any of the Company or its subsidiaries Acquired Companies shall have violated breached or taken any action inconsistent with any of the provisions set forth in this Section 4.4, 4.5; (2B) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate the fiduciary obligations of is required in order for the board of directors of the Company to comply with its fiduciary obligations to the Company’s stockholders under applicable law, ; (3C) at least two business days prior to furnishing any such nonpublic information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish nonpublic information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter Confidentiality Agreement as in effect immediately prior to the execution of Intent, this Agreement; and (4D) at least two business days prior to furnishing any such nonpublic information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company shall ensure that no affiliate or Representative of any of the Acquired Companies takes any action inconsistent with any of the provisions set forth in the preceding sentence, and the Company acknowledges and agrees that any violation of action inconsistent with any of the provisions set forth in the preceding sentence by any affiliate or Representative of any of the Company and its subsidiariesAcquired Companies, whether or not such affiliate or Representative is purporting to act on behalf of any of the Acquired Companies, shall be deemed to constitute a breach of this Section 4.4 4.5 by the CompanyAcquired Companies.
(db) The Company shall promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent orally and in writing of If any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest or request, and the terms thereof) that Inquiry is made or submitted by any Person during the Pre-Closing Period, then the Company shall promptly (and in no event later than 48 hours after receipt of such Acquisition Proposal or Acquisition Inquiry) advise Parent orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry, and the terms thereof). The Company shall keep Parent fully informed with respect to to: (i) the status of any such Acquisition Proposal, inquiry, indication Proposal or Acquisition Inquiry; and (ii) the status and terms of interest or request and any modification or proposed modification thereto.
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(fc) The Company shall immediately cease and cause to be terminated any existing discussions existing as of the date of this Agreement with any Person that relate to any Acquisition ProposalProposal or Acquisition Inquiry.
(gd) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, non-solicitation, no hire, “standstill” or similar agreement Contract to which any of the Company Acquired Companies is a party or under which any of the Company Acquired Companies has any rights, and will use its commercially reasonable efforts to enforce or cause each such agreement to be enforced to the extent requested by Parent. The Company also shall promptly request each Person that has executed a confidentiality or similar agreement within the last 12 months in connection with its consideration of a possible Acquisition Transaction or a possible equity investment in any Acquired Company to return to the Acquired Companies all confidential information heretofore furnished to such agreement at Person by or on behalf of any of the request of ParentAcquired Companies.
Appears in 1 contract
Sources: Merger Agreement (Websense Inc)
No Negotiation. During (a) Until the Pre-Closing Period, neither earlier of (ix) the Company nor Closing and (y) the termination of this Agreement in accordance with Article IX, the Company and each of the Principal Stockholders agrees severally that it will not, and will not permit any of its Subsidiaries shall(as applicable), nor (ii) Parent nor the Parent Subsidiary shallAffiliates, directors, officers or other employees, securityholders, partners, members, agents, or representatives, as applicable, to, directly or indirectly:
(ai) solicit solicit, encourage seek, entertain, support, assist, initiate or encourage participate in the initiation or submission of any inquiry, proposal proposal, discussion, or offer from any Person (other than Parent or the Company, as applicablean Affiliate thereof or their designees) relating to a possible an Acquisition Transaction;
(bii) disclose or furnish to any Person any non-public information or information not customarily disclosed to any Person under similar circumstances not involving a proposed Acquisition Transaction concerning the business, assets, technologies, books or records of the Company or afford any Person access to its properties, technologies, books or records not customarily afforded such access under similar circumstances not involving a proposed Acquisition Transaction (other than Parent or any Affiliate thereof);
(iii) participate in any discussions or negotiations or enter into any agreement with, with any Person relating to or provide any non-public information to, in connection with a proposal or offer made by such Person relating to an Acquisition Transaction; or (iv) assist or cooperate with any Person (other than Parent or the Companyany Affiliate thereof) to make any proposal or offer, as applicable) relating to or in connection with a possible Acquisition Transaction; or
(c) consider, entertain or accept any proposal or offer from any Person (other than Parent and the Company, as applicableor any Affiliate thereof) relating to a possible an Acquisition Transaction; provided, however, that prior to the adoption of this Agreement by the Company Required Stockholder Vote, this Section 4.4 shall not prohibit the Company from furnishing nonpublic information regarding the Company to, or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Company or its subsidiaries shall have violated any of the provisions set forth in this Section 4.4, (2) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of the Company and its subsidiaries, shall be deemed to constitute a breach of this Section 4.4 by the Company.
(d) The Company shall promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest or request, and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed with respect to the status of any such Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification thereto.
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(fb) The Company shall immediately cease and cause to be terminated any discussions existing such negotiations, discussion or agreements (other than with Parent) that are the subject matter of this Section 7.14.
(c) In the event that the Company, any Principal Stockholder, or any of their respective Affiliates, directors, officers or other employees, securityholders, partners, members, agents, or representatives, as applicable, shall receive any offer, proposal, or request, directly or indirectly, of the date type referenced in Section 7.14(a) hereof, or any request for disclosure or access as referenced in 7.14(a)(ii) hereof, the Company shall (to the extent it has knowledge of the same) (i) immediately suspend any discussions with such offeror or party with regard to such offers, proposals, or requests, and (ii) immediately thereafter, notify Parent thereof, which notice shall contain (1) the pricing, terms, conditions and other material provisions of such proposed transaction, (2) the identity of the proposed party or parties to such proposed transaction, and (3) a copy of the written agreement or other documentation setting forth the terms of the proposed transaction.
(d) The parties hereto agree that irreparable damage would occur in the event that the provisions of this Section 7.14 were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed by the parties hereto that Parent shall be entitled to an immediate injunction or injunctions, without the necessity of proving the inadequacy of money damages as a remedy and without the necessity of posting any bond or other security, to prevent breaches of the provisions of this Section 7.14 and to enforce specifically the terms and provisions hereof in any court of the U.S. or any state having jurisdiction, this being in addition to any other remedy to which Parent may be entitled at law or in equity. Without limiting the foregoing, it is understood that any violation of the restrictions set forth above by any Affiliate, director, officer or other employees, securityholder, agent or representative of the Company shall be deemed to be a breach of this Agreement with any Person that relate to any Acquisition Proposalby the Company.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 1 contract
Sources: Merger Agreement (Drugstore Com Inc)
No Negotiation. During Between the Pre-date of this Agreement and the Closing PeriodDate, neither or, if earlier, the date this Agreement is terminated pursuant to ARTICLE VII, the Sellers shall not (iand shall cause its Affiliates, including the Acquired Entities, and Representatives acting on Sellers’ behalf not to) the Company nor the Company Subsidiaries shall, nor (ii) Parent nor the Parent Subsidiary shall, directly or indirectly:
, (a) solicit solicit, initiate, continue, knowingly encourage or encourage the initiation of any inquiryengage in discussions or negotiations with, proposal or offer from any Person (other than Parent or the Company, as applicable) relating to a possible Acquisition Transaction;
(b) participate in solicit or knowingly encourage the making, submission or announcement of any discussions or negotiations or proposal by, (c) execute, enter into or become bound by any letter of intent, definitive agreement or other Contract or understanding with, or provide (d) except in the Ordinary Course of Business and not otherwise relating to any Acquisition Proposal, provide, disclose or furnish any non-public information to, in each case, any Person (other than Parent or the Company, as applicable) relating to or in connection with a possible Acquisition Transaction; or
(c) consider, entertain or accept any proposal or offer from any Person (other than Parent and the Company, as applicable) relating to a possible Acquisition Transaction; provided, however, that prior to the adoption of this Agreement by the Company Required Stockholder Vote, this Section 4.4 shall not prohibit the Company from furnishing nonpublic information regarding the Company to, or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Company or its subsidiaries shall have violated any of the provisions set forth in this Section 4.4, (2) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of the Company Buyer and its subsidiaries, shall be deemed to constitute a breach of this Section 4.4 by the Company.
(d) The Company shall promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal, any inquiry Affiliates or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest or request, and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed Governmental Authorities with respect to the status Transactions) concerning the Acquired Entities and their respective businesses, assets, liabilities or employees (in each case, including after giving effect to the Contribution), or any purchase of any such Contributed Assets or purchase of equity interests of the Acquired Entities (including after giving effect to the Contribution), any merger involving the Acquired Entities, any sale of all or a substantial portion of the Contributed Assets or assets of the Acquired Entities (including after giving effect to the Contribution) or any consolidation, combination, equity exchange, liquidation, dissolution or any similar transaction or series of related transactions involving any of the Acquired Entities (including by way of providing or continuing to provide access to the Data Room or to management of the Acquired Entities in connection therewith) (each, an “Acquisition Proposal”). No later than one Business Day after the date of this Agreement (or, inquiryin the case of actions required pursuant to clause (iii) below, indication no later than three Business Days after the date of interest or request this Agreement), Sellers shall (and any modification or proposed modification thereto.
each shall cause its Affiliates, including the Acquired Entities, and Representatives to) immediately (ei) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any and all existing discussions existing as of the date of this Agreement and negotiations with any Person that relate (other than Buyer and its Representatives) conducted heretofore with respect to any Acquisition Proposal.
, (gii) The Company agrees not cause access to release or permit the release Data Room and management of any Person from, or the Acquired Entities to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rightsbe terminated for all Persons other than Buyer and its Representatives, and will use (iii) request each Person that has heretofore executed a confidentiality agreement as a prospective bidder in connection with the process that resulted in this Agreement, including any such Person who submitted a bid to Sellers or its commercially reasonable efforts Representatives in connection with its consideration of an Acquisition Proposal, to enforce return or cause destroy all confidential information heretofore furnished to be enforced each such agreement at Person by or on behalf of the request Acquired Entities in accordance with the terms of Parenttheir confidentiality agreement; provided, however, that, for the avoidance of doubt, nothing in this Section 5.2 shall restrict any of the foregoing actions related to any Seller Parent Sale.
Appears in 1 contract
No Negotiation. During the Pre-Closing Period, or until the termination of this Agreement if prior to the end of the Pre-Closing Period, neither (i) the Company nor the Company Subsidiaries shall, nor (ii) Parent nor the Parent Subsidiary party shall, directly or indirectly:
(a) solicit solicit, or encourage or facilitate the initiation or submission of, any expression of any interest, inquiry, proposal or offer from any Person (other than Parent or the Company, as applicableother party) relating to a possible Acquisition Transaction;
(b) participate in any discussions or negotiations or enter into any agreement with, or provide any non-non public information to, any Person (other than Parent or the Company, as applicableother party) relating to or in connection with a possible Acquisition Transaction; or
(c) considerentertain, entertain consider or accept any proposal or offer from any Person (other than Parent and the Company, as applicableother party) relating to a possible Acquisition Transaction; provided. Each party shall promptly notify the other party in writing of any material inquiry, howeverproposal or offer relating to a possible Acquisition Transaction that is received by such party during the Pre-Closing Period. In the event the board of directors of such party determines in good faith (after receiving advice of its outside counsel) that in view of the requirements of such proposal or offer (the “Superior Proposal”) it is necessary to do so in order to comply with its fiduciary duties to the stockholders of such party under applicable law, and after giving the other party two business days written notice of such determination, such party may (A) furnish information with respect to such party to the Person making such Superior Proposal (and its Representatives) pursuant to a customary confidentiality agreement, provided that all such information (to the extent that such information has not been previously provided or made available to the other party) is provided or made available to the other party, as the case may be, prior to or substantially concurrent with the adoption of this Agreement by time it is provided or made available to such Person, as the Company Required Stockholder Votecase may be, this Section 4.4 shall not prohibit and (B) participate in discussions or negotiations with the Company from furnishing nonpublic information regarding the Company to, or entering into discussions with, any Person in response to a making such Superior Offer that is submitted to the Company by such Person Proposal (and not withdrawnits Representatives) if (1) neither the Company nor any Representative of any of the Company or its subsidiaries shall have violated any of the provisions set forth in this Section 4.4, (2) regarding such Superior Proposal. Neither the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate the fiduciary obligations of or the board of directors of the Company Parent nor any committee thereof shall (i) (A) withdraw (or modify in a manner adverse to the Company’s stockholders under applicable lawother party), or propose to withdraw (3or modify in a manner adverse to the other party), the approval, recommendation or declaration of advisability by such board or any such committee thereof of this Agreement or the Merger (it being understood that taking a neutral position or no position for more than seven (7) at least two business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of the Company and its subsidiaries, shall be deemed to constitute a breach of this Section 4.4 by the Company.
(d) The Company shall promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest or request, and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed with respect to the status of any such Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification thereto.
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition a Superior Proposal with respect to ita Superior Proposal shall be considered an adverse modification) or (B) recommend, adopt or approve, or propose publicly to recommend, adopt or approve, any Superior Proposal (any action described in this clause (i) being referred to as a “Adverse Recommendation Change”) or (ii) approve or recommend, or propose to approve or recommend, or allow such party to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement or other similar agreement constituting or related to, any Superior Proposal. The Company shall not submit Notwithstanding the foregoing the board of directors of a party may make an Adverse Recommendation Change if such board determines in good faith (after receiving advice of its outside counsel) that it is necessary to do so in order to comply with its fiduciary duties to the vote stockholders of its stockholders such party under applicable law; provided, however, that no Superior Adverse Recommendation change may be made in response to a Superior Proposal until after the fifth business day following the other party’s receipt of written notice from such party (an “Adverse Recommendation Notice”) advising the other party that such party’s board has determined that it intends to make such Adverse Recommendation Change, together with copies of any Acquisition written offer or proposal in respect of such Superior Proposal (it being understood and agreed that any amendment to the financial terms or publicly propose other material terms of such Superior Proposal shall require a new Adverse Recommendation Notice and a new five (5) business day period). In determining whether to do so.
(f) The Company make an Adverse Recommendation Change in response to a Superior Proposal, such party’s board shall immediately cease and cause take into account any changes to be terminated any discussions existing as of the date terms of this Agreement with any Person that relate proposed by the other party (in response to any Acquisition an Adverse Recommendation Notice or otherwise) in determining whether such third party Superior Proposal still constitutes a Superior Proposal.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 1 contract
Sources: Merger Agreement (Sbe Inc)
No Negotiation. During the Pre-Closing Pre‑Closing Period, neither none of the Seller, the Key Shareholders or any of the Representatives of the Seller, will, and each of the Seller and the Key Shareholders will cause its and its Affiliates’ Representatives not to (i) the Company nor the Company Subsidiaries shall, nor (ii) Parent nor the Parent Subsidiary shalland will not authorize any of them to), directly or indirectly:
(a) solicit solicit, initiate, knowingly encourage, knowingly facilitate or encourage the initiation induce any indication of any interest, inquiry, proposal or offer from any Person (other than Parent or the Company, as applicablePurchaser) relating to a possible Acquisition TransactionTransaction (each an “Acquisition Proposal”);
(b) participate in any discussions or negotiations or enter into any agreement with, or provide any non-public non‑public information to, or take any Person (other than Parent action to knowingly facilitate any inquiries or the Company, as applicable) relating making of any proposal that constitutes or may reasonably be expected to or in connection with a possible lead to an Acquisition TransactionProposal; orand
(c) consider, entertain or accept any proposal Acquisition Proposal. The Seller represents and warrants to the Purchaser that the Seller has ceased any and all activities, discussions or offer from negotiations with any Person (other than Parent and the Company, as applicable) relating to a possible Acquisition Transaction; provided, however, that third parties conducted on or prior to the adoption date hereof with respect to any Acquisition Proposal and, in connection therewith, the Seller will discontinue access to and disclosure of this Agreement by its and its Subsidiaries’ confidential information with respect to any Acquisition Proposal and shall as soon as possible request, and exercise all rights it has (or cause its Subsidiaries to exercise any rights that they have) to require, the Company Required Stockholder Vote, this Section 4.4 shall not prohibit the Company from furnishing nonpublic return or destruction of all confidential information regarding the Company to, or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Company or its subsidiaries shall have violated any of the provisions set forth in this Section 4.4, (2) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of the Company Seller and its subsidiaries, shall be deemed to constitute a breach of this Section 4.4 by the Company.
(d) The Company shall promptly (and Subsidiaries previously provided in no event later than 24 hours connection therewith. Immediately after receipt of any Acquisition Proposal, the Seller will promptly (and in any inquiry or indication of interest event within one Business Day after receipt) provide the Purchaser with oral and written notice that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest or request, and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed with respect to the status of any such Acquisition Proposal, inquiry, indication of interest or request and any modification or proposed modification theretohas been received.
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposal.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 1 contract
No Negotiation. During the Pre-Closing Period, neither (i) the Company nor the Company Subsidiaries shallshall not, nor (ii) Parent nor the Parent Subsidiary shalldirectly or indirectly, and shall not authorize or permit its officers, directors, employees, shareholders, agents, or affiliates to directly or indirectly:
(a) solicit or encourage the initiation or submission of any expression of interest, inquiry, proposal or offer from any Person (other than Parent or the Company, as applicableParent) relating to a possible Acquisition Transaction;
(b) participate in any discussions or negotiations or enter into any agreement with, or provide any non-public information (other than information that would otherwise be required to be disclosed by the Company in a report filed pursuant to the Exchange Act, if the Company were subject to the reporting requirements of the Exchange Act) to, any Person (other than Parent or the Company, as applicableParent) relating to or in connection with a possible Acquisition Transaction; or
(c) considerentertain, entertain consider or accept any proposal or offer from any Person (other than Parent and the Company, as applicableParent) relating to a possible Acquisition Transaction; provided, however, that prior nothing in the above paragraphs is intended to conflict with the adoption fiduciary duties of this Agreement the Company's Board of Directors under applicable California law. The Company shall, and shall cause each of its Representatives to, immediately discontinue any ongoing discussions or negotiations (other than any ongoing discussions with Parent) relating to a possible Acquisition Transaction, and shall promptly provide Parent with an oral description of any bona fide expression of interest, inquiry, proposal or offer relating to a possible Acquisition Transaction that is received by the Company Required Stockholder Vote, this Section 4.4 shall not prohibit the Company from furnishing nonpublic information regarding the Company to, or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Company or its subsidiaries shall have violated Company's Representatives from any of the provisions set forth in this Section 4.4Person (other than Parent), (2) the board of directors of provided, however, that the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure shall not be required to take disclose any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent hereunder if such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of the Company and its subsidiaries, shall be deemed to disclosure would constitute a breach of this Section 4.4 by the Company.
(d) The 's obligations under any confidentiality agreement between the Company shall promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead to an Acquisition Proposal or any request for nonpublic information) advise Parent orally and in writing of any Acquisition Proposal or any inquiry or indication of interest that would reasonably be expected to result in an Acquisition Proposal (including the identity of the Person making or submitting such Acquisition Proposal, inquiry, indication of interest or request, and the terms thereof) that is made or submitted by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed with respect a third party entered into prior to the status date hereof and a copy of any such Acquisition Proposal, inquiry, indication of interest which has been previously provided to Parent or request and any modification or proposed modification theretoits Representatives.
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposal.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 1 contract
No Negotiation. During From the Pre-date hereof until the earlier of the Closing Periodor termination of this Agreement in accordance with Article XII, neither the Sellers shall, and shall cause the Target Companies to, deal exclusively and in good faith with Buyer with regard to the transactions contemplated by this Agreement and will not, and will cause their respective Affiliates and Representatives not to, (i) the Company nor the Company Subsidiaries shall, nor (ii) Parent nor the Parent Subsidiary shall, directly or indirectly:
(a) , solicit or encourage the initiation initiate submission of any inquiryAcquisition Proposal, proposal or offer from any Person (other than Parent or the Company, as applicable) relating to a possible Acquisition Transaction;
(bii) participate in any discussions or negotiations or enter into any agreement withregarding, or provide furnish any non-public information toto any other Person regarding, any Person (Target Company other than Parent Buyer and its Representatives or the Companyotherwise cooperate in any way or assist, as applicable) relating to facilitate, or in connection with a possible encourage any Acquisition Transaction; or
(c) consider, entertain or accept any proposal or offer from Proposal by any Person (other than Parent and the CompanyBuyer, as applicableor (iii) relating to a possible Acquisition Transaction; providedenter into any Contract, howeverwhether in writing or oral, that prior to the adoption of this Agreement by the Company Required Stockholder Vote, this Section 4.4 shall not prohibit the Company from furnishing nonpublic information regarding the Company to, or entering into discussions with, any Person in response to a Superior Offer that is submitted to the Company by such Person (and not withdrawn) if (1) neither the Company nor any Representative of any of the Company or its subsidiaries shall have violated any of the provisions set forth in this Section 4.4, (2) the board of directors of the Company concludes in good faith, after having taken into account the advice of its outside legal counsel, that failure to take any such action would violate the fiduciary obligations of the board of directors of the Company to the Company’s stockholders under applicable law, (3) at least two business days prior to furnishing any such information to, or entering into discussions with, such Person, the Company gives Parent written notice of the identity of such Person and of the Company’s intention to furnish information to, or enter into discussions with, such Person, and the Company receives from such Person an executed confidentiality agreement containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and “standstill” provisions) at least as favorable to the Company as the provisions of the Letter of Intent, and (4) at least two business days prior to furnishing any such information to such Person, the Company furnishes such nonpublic information to Parent (to the extent such nonpublic information has not been previously furnished by the Company to Parent). Without limiting the generality of the foregoing, the Company acknowledges and agrees that any violation of any of the provisions set forth in the preceding sentence by any Representative of any of the Company and its subsidiaries, shall be deemed to constitute a breach of this Section 4.4 by the Company.
(d) The Company shall promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal, any inquiry or indication of interest that could lead relates to an Acquisition Proposal or would have the effect of preventing the consummation of the transactions contemplated by this Agreement. In addition to the other obligations under this Section 8.01(e), the Sellers shall, and shall cause the Target Companies to, promptly (and in any request for nonpublic informationevent within two (2) Business Days after receipt thereof by the Sellers, any Target Company, any of their Affiliates or their respective Representatives) advise Parent Buyer orally and in writing of any Acquisition Proposal Proposal, any request for information with respect to any Acquisition Proposal, or any inquiry with respect to, or indication of interest that would could reasonably be expected to result in in, an Acquisition Proposal, the material terms and conditions of such request, Acquisition Proposal (including or inquiry, and the identity of the Person making or submitting the same. The Sellers agree that the rights and remedies for noncompliance with this Section 8.01(e) shall include having such Acquisition Proposal, inquiry, indication of interest or request, and the terms thereof) that is made or submitted provision specifically enforced by any Person during the Pre-Closing Period. The Company shall keep Parent fully informed with respect to the status of court having equity jurisdiction, it being acknowledged and agreed that any such Acquisition Proposal, inquiry, indication of interest breach or request threatened breach shall cause irreparable injury to Buyer and any modification or proposed modification theretothat money damages would not provide an adequate remedy to Buyer.
(e) Subject to Section 5.3, the obligation of the Company to solicit the Written Consents shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission to it of any Acquisition Proposal with respect to it. The Company shall not submit to the vote of its stockholders any Acquisition Proposal or publicly propose to do so.
(f) The Company shall immediately cease and cause to be terminated any discussions existing as of the date of this Agreement with any Person that relate to any Acquisition Proposal.
(g) The Company agrees not to release or permit the release of any Person from, or to waive or permit the waiver of any provision of, any confidentiality, “standstill” or similar agreement to which the Company is a party or under which the Company has any rights, and will use its commercially reasonable efforts to enforce or cause to be enforced each such agreement at the request of Parent.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Astec Industries Inc)