No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, initiate, solicit, encourage or otherwise facilitate (including by way of furnishing information) any inquiries or the making of any proposal, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiations. (b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken in this Section 6.05.
Appears in 5 contracts
Sources: Merger Agreement (Imperial Holly Corp), Merger Agreement (Imperial Holly Corp), Merger Agreement (Savannah Foods & Industries Inc)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary shallnor any of the directors, officers or employees of it or any Subsidiary will, and that it shall will cause its and each Company its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary's Representatives ) not to, directly or indirectly, initiate, (i) solicit, initiate or encourage or otherwise facilitate (including by way of furnishing nonpublic information) ), or take any other action to facilitate, any inquiries or the making of any proposalproposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could may reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not lead to, directly or indirectlyany Competing Transaction, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions enter into or negotiations with, maintain or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into continue discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly Person in furtherance of such inquiriesinquiries or to obtain a proposal or offer for a Competing Transaction, proposals (iii) agree to, approve or offers received byendorse any Competing Transaction or enter into any letter of intent or other Contract relating to any Competing Transaction or (iv) authorize or permit any of the officers, directors or employees of the Company or any such information requested fromof its Subsidiaries, or any such discussions investment banker, financial advisor, attorney, accountant or negotiations sought to be initiated or continued with, other representative retained by the Company, any Company Subsidiary or any of their Representatives indicatingits Subsidiaries, in connection with to take any such notice, the name of such Person action. The Company shall notify CIG and the NBCU Entities as promptly as practicable (and in any event within one (1) Business Day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any Person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of any proposals the party making such proposal or offersoffer or inquiry or contact (including material amendments or proposed material amendments). The Company agrees that shall, and shall direct or cause its and its Subsidiaries’ directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it will or any Subsidiary) to, immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties Person that may have been conducted heretofore with respect to any Acquisition Proposala Competing Transaction. The Company shall not release any Person from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each Person that it shall keep IHK informedhas heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Subsidiary, if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such Person by or on a current basis, behalf of the status and terms of Company or any such proposals or offers and the status of any such discussions or negotiationsSubsidiary.
(b) The Company agrees that it will take Notwithstanding anything to the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken contrary in this Section 6.0510.05, prior to the Exchange Offer Closing or the Exchange Offer Expiration, as applicable, the Board may furnish information to, and enter into discussions with, a Person who has made an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction, and the Board has (i) determined, in its good faith judgment (after consultation with its financial advisor), that such proposal or offer constitutes or is reasonably likely to constitute a Superior Proposal, (ii) determined, in its good faith judgment after consultation with outside legal counsel (who may be the Company’s regularly engaged outside legal counsel), that, in light of such Superior Proposal, the furnishing of such information or entering into discussions is required to comply with its fiduciary obligations to the Company and its stockholders under applicable Law, (iii) provided written notice to CIG and the NBCU Entities of its intent to furnish information or enter into discussions with such Person and (iv) obtained from such Person an executed confidentiality agreement (it being understood that such confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right to negotiate with such party or having the effect of prohibiting the Company from satisfying its obligations under the Transaction Agreements to which it is a party).
(c) Except as otherwise provided in this Agreement, neither the Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to CIG and the NBCU Entities, the approval or recommendation by the Board or any such committee of the Transaction Agreements to which the Company is a party and the Transaction, including the Tender Offer and the Reverse Stock Split, or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction.
(d) The parties acknowledge and agree that nothing contained herein shall affect or in any way interfere with the Company’s Obligation to comply with Rule 14d-9 under the Exchange Act.
Appears in 5 contracts
Sources: Master Transaction Agreement (Ion Media Networks Inc.), Master Transaction Agreement (Cig Media LLC), Master Transaction Agreement (Ion Media Networks Inc.)
No Solicitation of Transactions. (a) The Company (i) Cigna agrees that neither that, during the term of this Agreement, it nor any Company Subsidiary shallshall not, and that it shall cause its Subsidiaries and each Company Subsidiary's Representatives its and their respective directors, officers, employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its Subsidiaries) not to, directly or indirectly, solicit, initiate, solicit, knowingly encourage or otherwise facilitate (including by way of furnishing information) knowingly facilitate, or furnish or disclose non-public information in furtherance of, any inquiries that would reasonably be expected to lead to, or the making of any proposalproposal or offer to implement, any Cigna Alternative Transaction, or offer negotiate or otherwise engage in discussions with any Person (other than Anthem, Merger Sub, or their respective directors, officers, employees, agents and representatives) with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involvingany Cigna Alternative Transaction, or approve, recommend or authorize any purchase Cigna Alternative Transaction, or sale of all enter into any agreement, arrangement or understanding with respect to any Cigna Alternative Transaction or requiring it to abandon, terminate or fail to consummate the Mergers or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement Agreement; provided that, at any time prior to receipt of the Required Cigna Vote (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"and in no event after receipt of the Required Cigna Vote). The Company further agrees that neither it nor any Company Subsidiary shall, Cigna may furnish information to, and that it shall cause its and each Company Subsidiary's Representatives not to, directly negotiate or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or otherwise engage in discussions with, any negotiations concerning an Acquisition Proposalparty who delivers a bona fide written proposal for a Cigna Alternative Transaction that was not solicited after the date of this Agreement, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent if and so long as the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors Cigna determines in good faith after consultation with its outside legal counsel that providing such action information or engaging in such negotiations or discussions is necessary reasonably likely to be required in order for it the directors to act in a manner consistent comply with its their fiduciary duties under applicable law, (C) prior to providing any information or data to any Person Delaware law and determines in connection with good faith that such a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested fromproposal is, or any such discussions or negotiations sought would reasonably be expected to be initiated or continued withlead to, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition a Cigna Superior Proposal. The Company agrees that it shall keep IHK informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiations.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken in this Section 6.05.
Appears in 4 contracts
Sources: Merger Agreement, Merger Agreement (Cigna Corp), Merger Agreement (Anthem, Inc.)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary shallshall not, and that it shall cause its affiliates and each its and its affiliates' officers, directors, employees, financial advisors, consultants, attorneys, accountants, agents and other representatives (the "Company Subsidiary's Representatives Representatives") not to, directly or indirectly, take any action to solicit, initiate, solicit, encourage or otherwise facilitate (including by way of furnishing information) any inquiries or the making of any proposalAcquisition Proposal or any inquiry with respect thereto or engage in discussions or negotiations with any person with respect thereto or in connection with any Acquisition Proposal or potential Acquisition Proposal, disclose any nonpublic information relating to it or the Company Subsidiaries or afford access to the properties, books or records of it or the Company Subsidiaries to any person that has made, or offer to such party's knowledge, is considering making, any Acquisition Proposal, approve or recommend, or propose to approve or recommend, any Acquisition Proposal or approve or recommend, or propose to approve or recommend, or execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement or propose to do any of the foregoing; provided, however, that, in the event that (x) the Company shall receive an Acquisition Proposal that the Board of Directors of the Company concludes in good faith could result in a Superior Proposal that was not solicited by it and did not otherwise result from a breach of this Section 7.04, (y) prior to receipt of the Requisite Shareholder Approval, the Board of Directors of the Company determines in good faith, after receiving the advice of outside legal counsel, that, in light of this Acquisition Proposal, the Board of Directors is required by its fiduciary duties under the Ohio Law to authorize the Company to participate in such discussions or negotiations with, or provide such information to, the party making the Acquisition Proposal, and (z) the Company gives Parent written notice of its intention to do so, the Company may (i) furnish information with respect to it and the Company Subsidiaries to the person making such Acquisition Proposal pursuant to a mergercustomary confidentiality agreement on terms no less favorable to the Company than those contained in the Letter Agreement and (ii) participate in discussions regarding such Acquisition Proposal. Any violation of the foregoing restrictions by the Company Representatives, reorganizationwhether or not such person is so authorized and whether or not any such person is purporting to act on behalf of the Company or otherwise, share exchangeshall be deemed to be a breach of this Agreement by the Company.
(b) Upon receiving an Acquisition Proposal, consolidationthe Company will promptly (and in no event later than 24 hours after receipt of any Acquisition Proposal) notify Parent, business combination, recapitalization, liquidation, dissolution after receipt of any Acquisition Proposal or similar transaction involvingany amendment or change in any previously received Acquisition Proposal, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, request for nonpublic information relating to the Company or any Company Subsidiary thator for access to the properties, in any such case, could reasonably be expected to interfere with the completion books or records of the Merger Company or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shallby any person that has made, and that it shall cause its and each Company Subsidiaryor to such party's Representatives not toknowledge may be considering making, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate and shall promptly provide copies of any effort or attempt proposals, indications of interest, draft agreements and correspondence relating to make or implement an Acquisition Proposal or accept an such Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will shall, and shall cause the Company Representatives to, immediately cease and cause to be terminated any existing activitiesall discussions and negotiations, discussions or negotiations if any, that have taken place prior to the date hereof with any parties conducted heretofore persons (other than Parent) with respect to any Acquisition ProposalProposal and shall request the return or destruction of all confidential information provided to any such person. The Company agrees that it shall keep IHK informed, on a current basis, of not to release any third party from the status confidentiality and terms standstill provisions of any such proposals or offers and agreement to which the status of any such discussions or negotiationsCompany is a party.
(bc) The Company agrees that it will take the necessary steps promptly to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary Representatives of the obligations undertaken in this Section 6.057.04.
Appears in 4 contracts
Sources: Merger Agreement (Medplus Inc /Oh/), Merger Agreement (Medplus Inc /Oh/), Merger Agreement (Medplus Inc /Oh/)
No Solicitation of Transactions. (a) The Company agrees that that, from and after the date hereof until the earlier of the Effective Time or the termination of this Agreement in accordance with Article VIII, neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, except as contemplated by this Agreement, directly or indirectly, initiate, solicit, solicit or encourage or otherwise facilitate (including by way of furnishing information) any inquiries or the making of any proposal, proposal or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets of the Company (including the sale of either of the Company's refineries or 20any of its terminals) and the Company Subsidiaries, taken as a whole, or 15% or more of the equity securities of, of the Company or any Company Subsidiary that, in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an a "Acquisition ProposalCompeting Transaction"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data relating to the Company or any Company Subsidiary to any Person person relating to an Acquisition Proposal a Competing Transaction or engage in any negotiations concerning an Acquisition Proposala Competing Transaction, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal a Competing Transaction or accept an Acquisition Proposala Competing Transaction; provided, however, that nothing contained in this Agreement Section 6.04 shall prevent the Company or the Company's Company Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person person in response to an unsolicited bona fide written Acquisition Proposal Competing Transaction by any such Personperson; or (iiiii) recommending such an unsolicited bona fide written Acquisition Proposal Competing Transaction to the holders of Company Common Stock if and only to the extent thatif, in any such case as is referred to in clause (iii) or (iiiii), (A) the Company's Company Board of Directors concludes in good faith (after consultation with its legal counsel and independent financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and Competing Transaction would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal Competing Transaction being hereinafter referred to in this Agreement as a "Superior Proposal"), (B) either the Company's Company Board of Directors or the Company Independent Committee determines in good faith after consultation with independent legal counsel that such action is necessary for it the Company Board to act in a manner consistent with its fiduciary duties under applicable lawLaw, (C) prior to providing any information or data regarding the Company to any Person person or any of such person's Representatives in connection with a Superior Proposal by any such Personperson, the Company's Board of Directors Company receives from such Person person an executed confidentiality agreement on terms substantially similar to at least as restrictive on such person as those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person person or any of such person's Representatives or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary person or any of their such person's Representatives in connection with a Superior Proposal by such person, the Company notifies Parent promptly of the receipt of such Superior Proposal indicating, in connection with such notice, the name of such Person person and attaching a copy of the terms and conditions of any proposals proposal or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions offer or negotiations with any parties conducted heretofore with respect to any Acquisition Proposalproviding a complete written summary thereof. The Company agrees that it shall keep IHK Parent informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiations.
(b) negotiations related to such Superior Proposal. The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken in this Section 6.056.04. Immediately following the execution of this Agreement, the Company shall terminate and cause the Company Subsidiaries to terminate any existing activities, discussions or negotiations with any third parties that may be ongoing with respect to any Competing Transaction and promptly after the public announcement of the execution of this Agreement shall use all reasonable efforts to request that all confidential information previously furnished to any such third parties be returned promptly. Nothing contained in this Agreement shall prohibit the Company or the Company Board from taking or disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-(2)(a) promulgated under the Exchange Act.
Appears in 4 contracts
Sources: Merger Agreement (Crown Central Petroleum Corp /Md/), Merger Agreement (Rosemore Inc), Merger Agreement (Rosemore Inc)
No Solicitation of Transactions. (a) The Unless and until this Agreement is terminated in accordance with its terms, none of the Company agrees that neither it nor any Company Subsidiary or its Subsidiaries shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, through any officer, director, agent or otherwise, initiate, solicit, solicit or knowingly encourage or otherwise facilitate (including by way of furnishing information) non-public information or assistance), or take any other action to facilitate knowingly, any inquiries or the making of any proposalproposal that constitutes, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could may reasonably be expected to interfere lead to, any Competing Transaction, or enter into or maintain or continue discussions or negotiate with the completion any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, or authorize or knowingly permit any of the Merger officers, directors or the employees of such party or any of its Subsidiaries or any investment banker, financial advisor, attorney, accountant or other transactions contemplated representative retained by this Agreement (such party or any of such party's Subsidiaries to take any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shallaction, and that it the Company shall cause its notify Buyer orally (within one Business Day) and each in writing (as promptly as practicable) of all of the relevant details relating to all inquiries and proposals which any officer or director of the Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data may receive relating to any Person relating of such matters and if such inquiry or proposal is in writing, the Company shall deliver to an Acquisition Proposal Buyer a copy of such inquiry or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposalproposal; provided, however, that nothing contained in this Agreement Section shall prevent prohibit the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions a tender or negotiations withexchange offer or prohibit the Board from taking such other actions as may be required to comply with its fiduciary obligations. If the Board determines with the advice of counsel that failure to do so could be held to violate its fiduciary duties, or providing any it may provide information to, any Person in response to an unsolicited proposal. If the Company receives a bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to proposal for a Competing Transaction that the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes determines in good faith (after consultation with based on the advice of a nationally recognized financial advisor) may provide greater value to the Company and its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock stockholders than the transaction transactions contemplated by this Agreement (Agreement, it may enter into negotiations with respect to such proposal. The Company will notify Buyer of any such more favorable Acquisition Proposal being hereinafter referred superior proposal not less than two Business Days prior to as entering into any definitive agreement with respect to a "Superior Proposal")Competing Transaction; provided, (B) however, that in no event shall the Company enter into a definitive agreement with respect to a Competing Transaction less than five Business Days after the Company's Board initial notification to Buyer of Directors determines in good faith after consultation with legal counsel that such action is necessary for it an inquiry or proposal relating to act in a manner consistent with its fiduciary duties under applicable lawCompeting Transaction. Within the two-Business-Day or five-Business-Day period referred to above, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person Buyer may propose an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiationsimproved transaction.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken in this Section 6.05.
Appears in 3 contracts
Sources: Stock Purchase Agreement (Prometheus Assisted Living LLC), Stock Purchase Agreement (Arv Assisted Living Inc), Stock and Note Purchase Agreement (Prometheus Assisted Living LLC)
No Solicitation of Transactions. The Stockholder hereby agrees that, prior to the Expiration Time (a) The Company agrees that neither it nor any Company Subsidiary shallas defined below), and that it the Stockholder shall cause its and each Company Subsidiary's Representatives not tonot, directly or indirectly, initiateincluding through any of its officers, directors or agents: (a) solicit, encourage initiate or otherwise knowingly encourage, induce or facilitate (including by way of furnishing information) any inquiries the communication, making, submission or the making announcement of any proposal, Acquisition Proposal or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution Acquisition Inquiry or similar transaction involving, or take any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, action that could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating lead to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition ProposalInquiry; (iib) engaging in furnish any discussions or negotiations with, or providing any non-public information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data regarding Parent to any Person in connection with a Superior or in response to an Acquisition Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar or Acquisition Inquiry; (c) engage in discussions (other than to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to inform any Person or entering into discussions of the existence of the provisions in this Section 1.7) or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal or Acquisition Inquiry; (d) approve, endorse or recommend any Acquisition Proposal; (e) execute or enter into any letter of intent or any Contract contemplating or otherwise relating to any Acquisition Transaction (other than an Acceptable Confidentiality Agreement (as defined in the Merger Agreement) permitted under the Merger Agreement); or (f) publicly propose to do any of the foregoing. The Company agrees Stockholder hereby represents and warrants that it shall keep IHK informed, on a current basis, the Stockholder has read Section 6.4 (No Solicitation) of the status Merger Agreement and terms of agrees not to engage in any actions prohibited thereby. Notwithstanding the foregoing, the Stockholder will not be responsible for the breaches by its officers, directors or agents that have otherwise entered into a separate support agreement with Parent (in a form reasonably acceptable to the Company), unless the Stockholder knowingly and intentionally caused such proposals or offers and the status of any such discussions or negotiationsbreach.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken in this Section 6.05.
Appears in 3 contracts
Sources: Merger Agreement (Ocugen, Inc.), Support Agreement (Ocugen, Inc.), Support Agreement (Carisma Therapeutics Inc.)
No Solicitation of Transactions. (a) The Subject to Section 5.4(b), from and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 7, the Company agrees that neither it nor any Company Subsidiary shallshall not, and that it shall cause its the Company Subsidiaries and each direct the Company Subsidiary's Representatives and CPS not to, directly or indirectly, : (i) initiate, solicit, solicit or knowingly encourage or otherwise facilitate (including by way of furnishing providing information) any inquiries or the making submission of any proposalinquiries, proposals or offers that constitute, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could would reasonably be expected to interfere lead to, any Acquisition Proposal or engage in any discussions or negotiations with the completion of the Merger respect thereto or otherwise participate in or facilitate any such inquiries, proposals, offers, discussions or negotiations, (ii) approve or recommend, or publicly propose to approve or recommend, an Acquisition Proposal, (iii) withdraw, change, amend, modify or qualify, or propose publicly to withdraw, change, amend, modify or qualify, in a manner adverse to Parent or the Purchaser, the Company Board Recommendation, (iv) enter into any merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person similar agreement relating to an Acquisition Proposal or engage enter into any agreement or agreement in any negotiations concerning an Acquisition Proposalprinciple requiring the Company to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or otherwise facilitate (v) resolve or agree to do any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent of the Company or foregoing (the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; foregoing clauses (ii) engaging in any discussions or negotiations with), or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only or (v) (to the extent that, in any such case as is referred related to in clause the foregoing clauses (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's a “Change of Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offersRecommendation”). The Company agrees that it will shall immediately cease and cause to be terminated any existing activitiessolicitation, discussion or negotiation with any Persons conducted theretofore by the Company, the Company Subsidiaries, CPS or any of the Company Representatives with respect to any Acquisition Proposal and shall use its commercially reasonable efforts to cause to be returned or destroyed all confidential information provided by or on behalf of the Company, any Company Subsidiary or CPS to such Person.
(b) Notwithstanding anything to the contrary contained in Section 5.4(a), if at any time following the date hereof and prior to the Acceptance Time (i) the Company has received a bona fide, unsolicited written Acquisition Proposal from a third party that did not result from a breach of this Section 5.4 and (ii) the Company Board determines in good faith, after consultation with its financial advisors and outside counsel, that such Acquisition Proposal constitutes or would reasonably be expected to result in a Superior Proposal, then the Company may (A) furnish information with respect to the Company, the Company Subsidiaries and CPS to the Person making such Acquisition Proposal, (B) release the Person making such Acquisition Proposal from any standstill or similar agreement that it entered into with the Company prior to September 30, 2010 to the extent necessary to allow such Person to make and negotiate such Acquisition Proposal, and (C) participate in discussions or negotiations with the Person making such Acquisition Proposal regarding such Acquisition Proposal; provided that the Company (x) will not, will not allow the Company Subsidiaries to, and will instruct CPS and the Company Representatives not to, disclose any parties conducted heretofore information to such Person without first entering into an Acceptable Confidentiality Agreement and (y) will promptly provide to Parent any information concerning the Company, the Company Subsidiaries or CPS provided to such other Person which was not previously provided to Parent.
(c) The Company shall promptly (and in any event within 36 hours) notify Parent in writing in the event that the Company, any Company Subsidiary, CPS or any Company Representative has Knowledge of its receipt of (i) any Acquisition Proposal, (ii) any request for non-public information relating to the Company, any Company Subsidiary or CPS other than requests for information in the ordinary course of business consistent with respect past practice and unrelated to an Acquisition Proposal or (iii) any inquiry or request for discussions or negotiations regarding any Acquisition Proposal. The Company agrees that it shall promptly (and in any event within such 36 hours) provide to Parent a copy of such Acquisition Proposal, request or inquiry (or, where no such copy is available, a reasonable description of the material terms of such Acquisition Proposal, request or inquiry), including any modifications thereto. The Company shall keep IHK informed, Parent reasonably informed on a current basis, basis (and in any event at Parent’s request and otherwise no later than 36 hours after it has Knowledge of the status and terms occurrence of any such proposals material changes, developments, discussions or offers and negotiations) of the status of any such Acquisition Proposal, request or inquiry (including the material terms and conditions thereof and of any material modification thereto), and any material developments, discussions and negotiations. Without limiting the foregoing, the Company shall promptly (and in any event within 36 hours) notify Parent if it determines to begin providing information or to engage in discussions or negotiationsnegotiations concerning an Acquisition Proposal pursuant to Section 5.4(b).
(bd) The Notwithstanding anything to the contrary contained in Section 5.4(a):
(i) if the Company agrees receives a bona fide written Acquisition Proposal that was not solicited after the date hereof and did not otherwise result from a breach of this Section 5.4 which the Company Board concludes in good faith, after consultation with outside counsel and its financial advisors, constitutes a Superior Proposal, after giving effect to all of the adjustments to the terms of this Agreement which may be offered by Parent, the Company Board may, at any time prior to the Acceptance Time, if it will determines in good faith after consultation with outside counsel that the failure to take any of the necessary steps to promptly inform each Company Subsidiary and each Representative following actions would be inconsistent with the fiduciary duties of the members of the Company Board to the Company’s stockholders under applicable Law, (x) effect a Change of Board Recommendation with respect to such Superior Proposal, or (y) terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal; provided, however, that (1) no Change of Board Recommendation may be made and (2) no termination of this Agreement pursuant to this Section 5.4(d) may be made, in each case until after the third (3rd) Business Day following Parent’s receipt of written notice from the Company advising Parent that the Company Board intends to make a Change of Board Recommendation or terminate this Agreement pursuant to this Section 5.4(d) and specifying the reasons therefor. In determining whether to make a Change of Board Recommendation, the Company Board shall take into account any Company Subsidiary changes to the terms of this Agreement proposed by Parent in response to the obligations undertaken notice contemplated in this Section 6.055.4(d) or otherwise; provided, further, that the Company shall not terminate this Agreement pursuant to the foregoing clause (y) unless in advance of or concurrently with such termination the Company pays the Breakup Fee; and
(ii) except with respect to or in connection with any Acquisition Proposal (which is covered by Section 5.4(d)(i)), if the Company Board determines in good faith, after consultation with outside counsel, that such action is necessary to comply with its fiduciary duties to the stockholders of the Company under applicable Law, the Company Board may at any time prior to the Acceptance Time effect a Change of Board Recommendation.
(e) Nothing contained in this Section 5.4 shall prohibit the Company Board from (i) taking and disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a) and Rule 14d-9 promulgated under the Exchange Act or (ii) making any disclosure to its stockholders if the Company Board has reasonably determined in good faith, after consultation with outside legal counsel, that the failure to do so would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (General Electric Co), Merger Agreement (Clarient, Inc)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary shallshall not, and that it shall cause its subsidiaries and each Company Subsidiary's Representatives its and its subsidiaries' officers, directors, employees, representatives, agents, advisors and affiliates not to, directly or indirectly, initiate, solicit, initiate or encourage or otherwise facilitate (including by way of furnishing information) any inquiries or the making of any proposalproposals with respect to, or offer with respect engage in any negotiations concerning, or provide any confidential information to, or have any discussions with, or enter into an agreement with, any person relating to any tender or exchange offer, proposal for a merger, reorganization, share exchange, consolidation, consolidation or other business combination, recapitalization, liquidation, dissolution combination involving the Company or similar transaction involvingany of its subsidiaries or any proposal or offer to acquire in any manner a greater than 20% equity interest in, or any purchase or sale of all or any significant portion more than 20% of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary thatof its subsidiaries, in other than the Transactions (any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as foregoing, an "Acquisition Proposal"). The ; provided, that the Company further agrees that neither it nor may (i) at any time prior to the consummation of the Offer, if the Company Subsidiary shallis not otherwise in violation of this Section 6.5, furnish information to, and that it shall cause its and each Company Subsidiary's Representatives not tonegotiate or otherwise engage in discussions with, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to party who delivers a written proposal for an Acquisition Proposal or engage if and so long as the Board of Directors of the Company determines in any negotiations concerning an good faith by a majority vote, based upon advice of its outside legal counsel, that failing to take such action would reasonably be expected to constitute a breach of the fiduciary duties of the Board; and (ii) take a position with respect to the Acquisition Proposal, or otherwise facilitate any effort amend or attempt to make withdraw such position, in compliance with Rule 14d-9 or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company also agrees that it will immediately to cease and cause to be terminated any existing activities, discussions or negotiations conducted prior to the date of this Agreement with any parties conducted heretofore other than Purchaser and its affiliates, with respect to any of the foregoing. The Company shall promptly (and in any event within 24 hours) advise Purchaser following the receipt by it of any Acquisition Proposal or any inquiry or request relating thereto and the substance thereof (including the identity of the person making such Acquisition Proposal and a copy of any written proposal), and, if consistent with its fiduciary duties, advise Purchaser of any developments with respect to such Acquisition Proposal, inquiry or request promptly upon the occurrence thereof, including the Company's entering into discussions or negotiations with respect thereto. The Company agrees that it shall keep IHK informednot to release any third party from, on or waive any provisions of, any confidentiality or standstill agreement to which the Company is a current basis, party. Without limiting the generality of the status and terms foregoing, it is understood that any violation of the restrictions set forth in this paragraph by any such proposals officer, director, employee, representative, agent, advisor or offers and the status of any such discussions or negotiations.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative affiliate of the Company or any Company Subsidiary subsidiary shall be deemed to be a breach of this paragraph by the obligations undertaken in this Section 6.05Company.
Appears in 3 contracts
Sources: Merger Agreement (Cyrus Acquisition Corp), Merger Agreement (General Host Corp), Merger Agreement (Franks Nursery & Crafts Inc)
No Solicitation of Transactions. The Company, its affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease any existing discussions or negotiations, if any, with any parties conducted heretofore with respect to any Business Combination Proposal (a) The as hereinafter defined). Prior to the purchase of Shares pursuant to the Offer, the Company agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not tomay, directly or indirectly, initiatefurnish information and access, solicit, encourage or otherwise facilitate (including by way of furnishing information) any inquiries or the making of any proposal, or offer with respect in each case only in response to a mergerrequest for such information or access to any person made after the date hereof which was not encouraged, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution solicited or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, initiated by the Company or any Company Subsidiary thatof its affiliates or any of its or their respective officers, directors, employees, representatives or agents after the date hereof, pursuant to appropriate confidentiality agreements containing terms substantially similar to those contained in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shallConfidentiality Agreement, and that it shall cause its may participate in discussions and each Company Subsidiary's Representatives not to, directly or indirectly, have negotiate with such person concerning any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Business Combination Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; providedif, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in (i) such person has submitted a written Business Combination Proposal to the Board of Directors of the Company relating to any such case as is referred to in clause transaction, (ii) or (iii)the Board, (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and independent financial advisorsadvisers, determines in good faith that (x) that the person making such Acquisition Business Combination Proposal is reasonably capable of being completedcompleting such Business Combination Proposal, taking into account all the legal, financial, regulatory and other aspects of the Acquisition such Business Combination Proposal and the Person person making the Acquisition Proposal, such Business Combination Proposal and would, if consummated, result in (y) such Business Combination Proposal would reasonably be expected to be a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement Superior Proposal (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), defined below) and (Biii) the Company's Board of Directors determines in good faith after consultation with legal faith, based upon the advice of outside counsel that to the Company, that, assuming such Business Combination Proposal is a Superior Proposal, failure to take such action is necessary for it to act in a manner consistent with would violate its fiduciary duties under applicable law, . The Board shall notify Parent promptly (Cbut in any event within 24 hours) prior to providing any information or data to any Person in connection with a Superior Proposal by if any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained proposal is made and shall in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, indicate in reasonable detail the name identity of such Person the offeror and the material terms and conditions of any proposals or offers. The Company agrees that it will immediately cease proposal and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiations.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken in this Section 6.05.48 44
Appears in 3 contracts
Sources: Merger Agreement (Rohm & Haas Co), Merger Agreement (Morton Acquisition Corp), Merger Agreement (Rohm & Haas Co)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary shallnor any of the directors, officers or employees of it or any Subsidiary will, and that it shall cause will not authorize or permit its and each Company Subsidiary's Representatives not its Subsidiaries’ agents, advisors and other representatives (including, without limitation, any investment banker, financial advisor, attorney, accountant or other representative retained by it or any Subsidiary (such agents, advisors and other representatives, each, a “Representative” and collectively, “Representatives”)) to, directly or indirectly, initiate, (i) solicit, initiate or knowingly encourage or otherwise knowingly facilitate (including by way of furnishing nonpublic information) any inquiries the making, submission or the making announcement of any proposalTransaction Proposal or (ii) enter into or maintain or continue discussions or negotiations with any person or entity with respect to or in order to obtain a Transaction Proposal, or offer (iii) agree to, approve, endorse or recommend any Transaction Proposal or enter into any letter of intent or other contract, agreement or commitment contemplating or otherwise relating to any Transaction Proposal (except, with respect to clause (iii), to the extent specifically permitted pursuant to the provisions of Section 7.05(c)). The Company shall notify Parent as promptly as practicable (and in any event within one (1) business day after the Company attains knowledge thereof), orally and in writing, if any Transaction Proposal, or any inquiry or contact with any person with respect thereto, is made, specifying the material terms and conditions thereof and the identity of the party making such Transaction Proposal (including any material amendments or proposed material amendments thereto). The Company shall, and shall direct its Subsidiaries’ directors, officers, employees and Representatives to, immediately cease and cause to be terminated any discussions or negotiations with any parties that may have been conducted heretofore with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involvingTransaction Proposal. The Company shall not release any third party from, or waive any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities provision of, any confidentiality agreement to which it is a party and the Company shall promptly request each person that has heretofore executed a confidentiality agreement in connection with its consideration of making any Transaction Proposal, if any, to return all confidential information heretofore furnished to such person by or on behalf of the Company or any Subsidiary and, if requested by Parent, to promptly enforce such person’s obligation to do so.
(b) Notwithstanding anything to the contrary in this Section 7.05, at any time prior to the Acceptance Time, the Company Subsidiary thatand its Subsidiaries’ directors, officers, employees and their respective Representatives may take any of the following actions with respect to a person who, after the date of this Agreement, has made a written, bona fide Transaction Proposal not solicited in violation of Section 7.05(a) or the exclusivity agreement, dated November 14, 2007 (the “Exclusivity Agreement”), between Parent and the Company (it being understood that a Transaction Proposal made by a person prior to the date of this Agreement without further action by such person shall not be considered to be made after the date of this Agreement), but only if, prior to furnishing such information or entering into such discussions, the Board has (A) determined, in any such caseits good faith judgment (after having received the advice of a financial advisor of nationally recognized reputation), could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any that such proposal or offer being hereinafter referred constitutes, or is reasonably likely to as an "Acquisition result in, a Superior Proposal", (B) determined, in its good faith judgment after consultation with independent legal counsel (who may be the Company’s regularly engaged independent legal counsel). The Company further agrees that neither it nor , that, in light of such Transaction Proposal, the failure to take such action would be reasonably likely to be inconsistent with its fiduciary obligations under applicable Law, (C) provided written notice to Parent of its intent to furnish information or enter into discussions with such person at least 24 hours prior to taking any Company Subsidiary shallsuch action, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion (D) obtained from such person an executed confidentiality agreement on terms with or provide any respect to confidential information that are no less favorable to the Company than those contained in the Confidentiality Agreement (it being understood that such confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right to negotiate with such party or data having the effect of prohibiting the Company from satisfying its obligations under this Agreement):
(i) furnish nonpublic information to any Person relating to an Acquisition such third party making the Transaction Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposaland its employees and Representatives; provided, however, that nothing contained in this Agreement the Company shall prevent promptly provide or make available to Parent any non-public information concerning the Company or any of its Subsidiaries that is provided to the Company's person making the Transaction Proposal or employee or Representative thereof if such information was not previously provided or made available to Parent; and
(ii) engage in discussions or negotiations with such third party and its employees and Representatives with respect to the Transaction Proposal.
(c) Except as set forth in this Section 7.05(c), neither the Board of Directors from nor any committee thereof shall (i) complying with Rule 14e-2 promulgated under withdraw or modify, or propose to withdraw or modify, in any manner adverse to Parent or Purchaser, the Exchange Act with regard to an Acquisition Proposal; approval or recommendation by the Board or any such committee of this Agreement, the Offer, the Merger or any other Transaction, (ii) engaging in take any discussions or negotiations with, or providing action to make the provisions of Section 203 of the DGCL inapplicable to any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; transaction other than the Transactions or (iii) recommending such an unsolicited bona fide written Acquisition approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Transaction Proposal to the holders of Company Common Stock if and only to the extent that, in (any such case as is referred to action listed in clause (i), (ii) or (iii), a “Change of Recommendation”). Notwithstanding the foregoing, if the Board determines, in its good faith judgment prior to the time of acceptance for payment of Shares pursuant to the Offer (the “Acceptance Time”) and after consultation with independent legal counsel (who may be the Company’s regularly engaged independent legal counsel), that the failure to make such a Change of Recommendation would be reasonably likely to be inconsistent with its fiduciary obligations under applicable Law, the Board may make a Change of Recommendation, but only if, prior to making such Change of Recommendation, (i) the Board provides written notice to Parent (a “Notice of Change of Recommendation”) advising Parent that it intends to effect a Change of Recommendation and the manner in which it intends to do so (it being understood and agreed that the Company shall not make any such Change of Recommendation unless (A) in the Company's event that the Company shall have previously received a Superior Proposal, four (4) business days shall have elapsed since Parent’s receipt of such Notice of Change of Recommendation or (B) in the event that the Company shall not have previously received a Superior Proposal, three (3) business days shall have elapsed since Parent’s receipt of such Notice of Change of Recommendation) and (ii) if the Board shall have previously received a Superior Proposal, specifying the material terms and conditions of Directors concludes in good faith such Superior Proposal, identifying the person making such Superior Proposal, providing to Parent copies of the definitive forms of all agreements pertaining to such Superior Proposal; provided, however, that the Board shall not make any Change of Recommendation unless (i) prior to making such Change of Recommendation, the Board determines, after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects any modifications to the terms of the Acquisition Proposal and Transactions that are proposed by Parent within three (3) or four (4) business days of Parent’s receipt of the Person making the Acquisition ProposalNotice of Change of Recommendation, and would, if consummated, result in that a transaction more favorable failure to holders make such Change of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred Recommendation would be reasonably likely to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent be inconsistent with its fiduciary duties under applicable law, Law and (Cii) prior to providing any information or data to any Person in connection with if the Board shall have previously received a Superior Proposal by any such PersonProposal, the Company's Board of Directors receives from such Person Company simultaneously terminates this Agreement in accordance with Section 9.01(d)(ii) (and pays to Parent the Fee in accordance with Section 9.03 and enters into an executed confidentiality agreement on terms substantially similar with respect to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offersa Superior Proposal). The Company agrees that it will immediately cease during the three (3) or four (4) business day period prior to its effecting a Change in Recommendation, the Company and cause its employees, officers, directors shall, and the Company shall direct its Representatives to, negotiate in good faith with Parent and its employees, officers, directors and Representatives regarding any revisions to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, the terms of the status and terms of any such proposals or offers and the status of any such discussions or negotiationsTransactions that are proposed by Parent.
(bd) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative For purposes of the Company or any Company Subsidiary of the obligations undertaken in this Section 6.05.Agreement:
Appears in 3 contracts
Sources: Merger Agreement (Stmicroelectronics Nv), Merger Agreement (Genesis Microchip Inc /De), Merger Agreement (Genesis Microchip Inc /De)
No Solicitation of Transactions. (a) The Company agrees that neither it nor shall immediately cease and cause to be terminated all existing discussions or negotiations relating to a Competing Transaction (as defined below), other than with respect to the Transactions, with any parties conducted heretofore. The Company Subsidiary shallwill not, directly or indirectly, and that it shall cause will instruct its and each Company Subsidiary's Representatives not to, directly or indirectly, initiate, solicit, solicit or encourage or otherwise facilitate (including by way of furnishing information) information or assistance), or take any other action to facilitate, any inquiries or the making of any proposalproposal that constitutes, or offer with respect may reasonably be expected to a mergerlead to, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involvingany Competing Transaction, or enter into or maintain discussions or negotiate with any purchase person in furtherance of or sale relating to such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, or authorize or permit any Representative of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in of its Subsidiaries to take any such caseaction, could reasonably be expected the Company shall use its best efforts to interfere with cause the completion Representatives of the Merger or the other transactions contemplated by this Agreement (Company and its Subsidiaries not to take any such action, the Company shall promptly notify Purchaser if any such inquiries or proposals are made regarding a Competing Transaction, and the Company shall promptly inform Purchaser as to the material details of any such inquiry or proposal and, if in writing, promptly deliver or offer being hereinafter referred cause to as an "Acquisition Proposal")be delivered to Purchaser a copy of such inquiry or proposal. The Company further agrees that neither it nor shall keep Purchaser informed, on a current basis, of the details of any Company Subsidiary shall, such inquiries and that it shall cause its the status and each Company Subsidiary's Representatives not to, directly or indirectly, have terms of any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposalsuch proposals; provided, however, that prior to the time of acceptance for payment -------- ------- of at least a majority of Shares pursuant to the Offer, nothing contained in this Agreement Section 6.3 shall prevent prohibit the Company or the Company's Board of Directors of the Company from (i) furnishing information to, or entering into discussions or negotiations with, any person that after the date hereof makes an unsolicited bona fide proposal regarding a Competing Transaction or agreeing to or endorsing any Competing Transaction, if, and only to the extent that, (A) the Board of Directors of the Company, after consultation with and based upon the advice of independent legal counsel, determines in good faith that such action is required for the Board of Directors of the Company to comply with its fiduciary duties to stockholders imposed by the DGCL, (B) prior to furnishing such information to, or entering into discussions or negotiations with such person or agreeing to or endorsing any Competing Transaction, the Board of Directors of the Company determines in good faith, after consultation with and based upon the advice of a financial advisor of a nationally recognized reputation, that such Competing Transaction is a Superior Proposal, (C) prior to furnishing such information to, or entering into discussions or negotiations with, such person, the Company provides written notice to Purchaser to the effect that it is furnishing information to, or entering into discussions or negotiations with, such person, (D) prior to furnishing such information to such person, the Company receives from such person an executed confidentiality agreement with terms no less favorable to the Company than those contained in the Confidentiality Agreement, and (E) such information to be so furnished has been previously delivered to Purchaser; or (ii) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiationsCompeting Transaction.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken in this Section 6.05.
Appears in 3 contracts
Sources: Merger Agreement (Advanced Logic Research Inc), Merger Agreement (Gateway 2000 Inc), Merger Agreement (Gateway 2000 Inc)
No Solicitation of Transactions. (a) The Subject to Sections 7.8(b) and 7.8(c), the Company agrees that neither shall not, nor shall it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not toauthorize or permit, directly or indirectly, any officer, trustee, director, employee, investment banker, financial advisor, attorney, broker, finder or other agent, representative or Affiliate of the Company to (i) initiate, solicit, knowingly encourage or otherwise knowingly facilitate (including by way of furnishing informationnonpublic information or assistance) any inquiries or the making of any proposalproposal or other action that constitutes, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could may reasonably be expected to interfere lead to, any Acquisition Proposal or (ii) enter into discussions or negotiate with the completion any Person in furtherance of the Merger such inquiries or the other transactions contemplated by this Agreement (any such proposal otherwise with respect to, or offer being hereinafter referred to as obtain, an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall take all actions reasonably necessary to cause its officers, trustees, directors, employees, investment bankers, financial advisors, attorneys, brokers, finders and each Company Subsidiary's Representatives not toany other agents, directly representatives or indirectlyaffiliates to immediately cease any discussions, have negotiations or communications with any discussion party or parties with or provide any confidential information or data respect to any Person relating to an Acquisition Proposal that is active or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposalpending as of the date hereof; provided, however, that nothing contained in this Section 7.8 shall preclude the Company or its officers, trustees, directors, employees, investment bankers, financial advisors, attorneys, brokers, finders and other agents, representatives or affiliates from complying with the provisions of Section 7.8(d). The Company shall be responsible for any failure on the part of its officers, trustees, directors, employees, investment bankers, financial advisors, attorneys, brokers, finders and any other agents, representatives or affiliates to comply with this Section 7.8.
(b) Further, and except as expressly permitted by this Section 7.8, neither the Board nor any committee thereof shall (i) make a Change in Recommendation, (ii) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal or (iii) permit the Company to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to an Acquisition Proposal.
(c) The Company shall promptly notify Acquiror (but in no event less than 24 hours following the Company’s initial receipt of any Acquisition Proposal) of the relevant details relating to an Acquisition Proposal (including the identity of the parties and all material terms thereof) which the Company may receive after the date hereof, and shall keep Acquiror informed on a prompt basis as to the status of and any material developments regarding any such proposal.
(d) Notwithstanding Sections 7.8(a) and 7.8(b) or any other provision of this Agreement to the contrary, following the receipt by the Company of an Acquisition Proposal (that was not solicited, encouraged or facilitated in violation of Sections 7.8(a) and 7.8(b)), but prior to receiving the Requisite Shareholder Approval, the Board may (directly or through advisors or representatives):
(i) contact such Person and its advisors solely for the purpose of clarifying the proposal and any material terms thereof and the conditions to and likelihood of consummation, so as to determine whether the proposal for an Acquisition Proposal is reasonably likely to lead to a Superior Proposal; and
(ii) if the Board determines in good faith following consultation with its legal and financial advisors that such Acquisition Proposal is reasonably likely to lead to a Superior Proposal, the Board may:
(A) furnish non-public information with respect to the Company to the Person who made such proposal (provided that the Company (x) has previously or concurrently furnished such information to Acquiror and (y) shall furnish such information pursuant to a confidentiality agreement which is at least as favorable to the Company as the Confidentiality Agreement),
(B) disclose to its Shareholders any information required to be disclosed under applicable Law,
(C) participate in negotiations regarding such proposal, and
(D) following receipt of an Acquisition Proposal that constitutes a Superior Proposal (x) terminate this Agreement pursuant to, and subject to compliance with, Section 4.1(h) and (y) take any nonappealable, final action that any court of competent jurisdiction orders the Company to take; but in each case referred to in clauses (A) through (D) only if, after complying with this Section 7.8(d), the Board determines in good faith by a majority vote, after consultation with, and after considering advice from, outside legal counsel to the Company, that it must take such action in order to company with its fiduciary duties to the Company or its Shareholders under applicable Nevada Law. Nothing in this Section 7.8 or elsewhere in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act with regard respect to an Acquisition ProposalProposal or from making any required disclosure to the Shareholders if, in the good faith judgment of the Board, after consultation with outside legal counsel, failure to do so would violate its obligations under applicable Law, including Rule 14d-9 promulgated under the Exchange Act or Item 1012(a) of Regulation M-A; (ii) engaging in any discussions or negotiations withprovided, or providing any information tohowever, any Person in response that neither the Company nor the Board shall be permitted to recommend pursuant to such provision an unsolicited bona fide written Acquisition Proposal by which is not a Superior Proposal.
(e) The Board shall not take any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to of the holders of Company Common Stock if and only to the extent that, in any such case as is actions referred to in clause (iiC) or (iii), D) of Section 7.8(d)(ii) unless (Ai) the Company's Board Company has given Acquiror at least four Business Days notice, measured from the receipt of Directors concludes in good faith notice of such proposal or the receipt of any material change to the terms thereof, of its intent to take such action and (ii) after consultation with its legal counsel waiting at least such four- Business Day period and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable any amendment to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred entered into or to as a "Superior Proposal"), (B) the Company's Board which Acquiror irrevocably covenants to enter into and for which all internal approvals of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board Acquiror have been obtained since receipt of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Superior Proposal remains a Superior Proposal. The Company agrees that it shall keep IHK informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiations.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken in this Section 6.05.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Royal Gold Inc), Merger Agreement (Battle Mountain Gold Exploration Corp.), Merger Agreement (Royal Gold Inc)
No Solicitation of Transactions. (a) The Until the earlier of the Effective Time and the termination of this Agreement pursuant to Article 8, except pursuant to Section 6.03(b), the Company agrees that neither it nor any Company Subsidiary shallof its Subsidiaries will, and that it shall will cause its and each Company Subsidiary's its Subsidiaries’ Representatives (including any investment banker, attorney or accountant retained by any Group Company) not to, in each case, directly or indirectly, (i) solicit, initiate, solicit, knowingly encourage or otherwise facilitate (including by way of furnishing information) any inquiries or the making of any proposal, or offer nonpublic information with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involvingany Group Company), or take any purchase other action to knowingly facilitate, any inquiry, proposal or sale of all offer (including any proposal or any significant portion of the assets offer to its shareholders) that constitutes or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could would reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage result in any negotiations concerning an Acquisition ProposalCompeting Transaction, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging engage in, continue or otherwise participate in any discussions or negotiations with, or providing provide any nonpublic information with respect to any Group Company to, any Person Third Party in furtherance of or in order to obtain any inquiry, proposal or offer that constitutes or would reasonably be expected to result in any Competing Transaction, (iii) agree to, approve, endorse, recommend or consummate, or enter into any letter of intent or Contract (other than an Acceptable Confidentiality Agreement) or commitment contemplating or otherwise relating to, any proposal or offer that constitutes or would reasonably be expected to result in any Competing Transaction, (iv) grant any waiver, amendment or release under any standstill, confidentiality or similar agreement or Takeover Statutes, or (v) agree or authorize to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and the Representatives of the Company and its Subsidiaries to, immediately cease and cause to be terminated all existing discussions or negotiations with any Third Parties conducted heretofore with respect to a Competing Transaction or any inquiry, proposal or offer that would reasonably be expected to result in a Competing Transaction and immediately revoke or withdraw access of any Third Party to any nonpublic information concerning any Group Company and request, and use its reasonable efforts to cause, all such Third Parties to promptly return or destroy all such nonpublic information.
(b) The Company shall notify THL as promptly as practicable (and in any event within forty-eight (48) hours) after its receipt of any inquiry, proposal or offer, or any request for nonpublic information on any Group Company by any Third Party which indicates that it is considering making or has made a proposal or offer, that constitutes or would reasonably be expected to result in any Competing Transaction. Such notice shall specify in writing in reasonable detail (i) the material terms and conditions thereof, (ii) the identity of the Third Party making such inquiry, proposal, offer, request or contact, and (iii) whether the Company has any intention to provide confidential information to such person. The Company shall keep THL informed, on a reasonably current basis (and in any event within forty-eight (48) hours of the occurrence of any material changes, developments, discussions or negotiations) of the status and terms of any such inquiry, proposal, offer, request or contact and of any material changes in the status and terms of any such inquiry, proposal, offer, request or contact. The Company shall not, and shall cause its Subsidiaries not to, enter into any confidentiality agreement with any Third Party subsequent to the date of this Agreement which prohibits the Company from providing such information to THL.
(c) Notwithstanding anything to the contrary in Section 6.03(a), following the receipt of an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction which was not obtained in violation of this Section 6.03, the Company and its Representatives may, with respect to such proposal or offer and acting only under the direction of the Special Committee:
(i) contact the Third Party who has made such proposal or offer to clarify and understand the terms and conditions thereof to the extent the Special Committee has determined in good faith that such contact is necessary to determine whether such proposal or offer constitutes or would reasonably be expected to result in a Superior Proposal;
(ii) provide information in response to the request of the Third Party who has made such proposal or offer pursuant to an unsolicited bona fide written Acquisition Proposal by executed Acceptable Confidentiality Agreement between the Company and such person, provided that the Company shall concurrently make available to THL any non-public information concerning the Company and its Subsidiaries that is provided to any such Personperson that was not previously made available to THL or its Representatives; or and
(iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, engage in or participate in any discussions or negotiations with the Third Party who has made such case as is referred proposal or offer; provided, that prior to taking any actions described in clause (ii) or (iii) above, the Special Committee has determined, in its good faith judgment, after consultation with its financial advisor and outside legal counsel, that such proposal or offer constitutes or would reasonably be expected to result in a Superior Proposal, and that failure to take such action would violate its fiduciary duties to the Company and its shareholders under applicable Law.
(d) Except as set forth in Section 6.03(e), neither the Company Board nor any committee thereof (including the Special Committee) shall (i) change, withhold, withdraw, qualify or modify, or propose to change, withhold, withdraw, qualify or modify, in a manner adverse to THL or Parent, any recommendation or approval that the Company Board or the Special Committee has previously made or resolved with respect to the Transactions, (ii) adopt, approve or recommend, or propose to adopt, approve or recommend to the shareholders of the Company, any Competing Transaction, (iii) if a tender offer or exchange offer that constitutes a Competing Transaction is commenced, fail to publicly recommend against acceptance of such tender offer or exchange offer by the Company shareholders (including, for these purposes, by disclosing that it is taking no position with respect to the acceptance of such tender offer or exchange offer by its shareholders, which shall constitute a failure to recommend against acceptance of such tender offer or exchange offer) within ten (10) Business Days after commencement thereof, (iv) fail to recommend against any Competing Transaction subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten (10) Business Days after the commencement of such Competing Transaction, or (v) propose, cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other or similar document or Contract with respect to any Competing Transaction other than an Acceptable Confidentiality Agreement entered into in compliance with Section 6.03(c) (any of the foregoing, a “Change in the Company Recommendation”).
(e) Notwithstanding the foregoing, prior to the consummation of the Merger, if the Company has received a bona fide written proposal or offer with respect to a Competing Transaction which was not withdrawn and the Company Board (acting upon recommendation of the Special Committee) has determined in its good faith judgment, after consultation with its financial advisor and outside legal counsel, that such proposal or offer constitutes a Superior Proposal after giving effect to all of the adjustments which may be offered by THL pursuant to this Section 6.03(e) and that failure to make a Change in the Company Recommendation would violate its fiduciary duties to the Company and its shareholders under applicable Law, the Company Board (acting upon recommendation of the Special Committee) may effect a Change in the Company Recommendation with respect to such Superior Proposal; provided, that, (A) the Company's Board Company has materially complied with the requirements of Directors concludes in good faith (after consultation this Section 6.03 with its legal counsel and financial advisors) that respect to such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), proposal or offer; (B) the Company's Company has (1) provided at least five (5) Business Days’ prior written notice to THL (a “Notice of Superior Proposal”) advising THL that the Company Board has received a Superior Proposal, specifying the material terms and conditions of Directors determines such Superior Proposal (and providing any proposed agreements related thereto), identifying the person making such Superior Proposal and indicating that the Company Board intends to effect a Change in the Company Recommendation, (2) negotiated with and caused its Representatives to negotiate with THL and its Representatives in good faith after consultation with legal counsel that during such action is necessary for it notice period (to act the extent THL desires to negotiate) to make such adjustments in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of this Agreement, so that such Third Party proposal or offer would cease to constitute a Superior Proposal, and (3) permitted THL and its Representatives to make a presentation to the Company Board and the Special Committee regarding this Agreement and any proposals adjustments with respect thereto (to the extent THL desires to make such presentation); and (C) following the end of such five (5) Business Day notice period, the Company Board (acting upon recommendation of the Special Committee) has determined in its good faith judgment, after consultation with its financial advisor and outside legal counsel and taking into account any changes to this Agreement proposed by THL in response to the Notice of Superior Proposal or offers. The Company agrees otherwise, that it will immediately cease and cause to be terminated any existing activities, discussions the proposal or negotiations with any parties conducted heretofore offer with respect to the Competing Transaction giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal and that failure to make a Change in the Company Recommendation would violate its fiduciary duties to the Company and its shareholders under applicable Law; provided further, that any Acquisition material modifications or changes to such Third Party proposal or offer shall be deemed a new Superior Proposal and the Company shall be required to again comply with the requirements of this Section 6.03(e), except that with respect to such new Superior Proposal, the notice periods in this Section 6.03(e) shall be deemed to be a three (3) Business Day period rather than a five (5) Business Day period. The None of the Company, the Company agrees Board or any committee thereof (including the Special Committee) shall enter into any Contract with any Third Party to limit or not to give prior notice to THL of its intention to effect a Change in the Company Recommendation.
(f) Notwithstanding any other provision of this Agreement, prior to the Effective Time, the Company Board (acting upon recommendation of the Special Committee) or the Special Committee may direct the Company to terminate this Agreement (other than in response to a Superior Proposal, which shall be governed by the other provisions hereof) (such a termination, the “Intervening Event Termination”) if and only if (i) a material development or change in circumstances has occurred or arisen after the date of this Agreement that it was not known to, nor reasonably foreseeable by, any member of the Special Committee as of or prior to the date hereof and did not result from or arise out of the announcement or pendency of, or any actions required to be taken by the Company (or to be refrained from being taken by the Company) pursuant to, this Agreement (an “Intervening Event”); provided, that in no event shall keep IHK informedthe following developments or changes in circumstances constitute an Intervening Event: (x) the receipt, on existence, or terms of a current basisproposal or offer regarding a Competing Transaction or any matter relating thereto or consequence thereof or any inquiry, proposal, offer, or transaction from any Third Party relating to or in connection with a Competing Transaction (which, for the purposes of the Intervening Event definition, shall be read without reference to the percentage thresholds set forth in the definition thereof), or (y) any change in the price, or change in trading volume, of the status Shares or the ADSs (provided, however, that the exception to this clause (y) shall not apply to the underlying causes giving rise to or contributing to such change or prevent any of such underlying causes from being taken into account in determining whether an Intervening Event has occurred), (ii) the Company Board has first reasonably determined in good faith, after consultation with its financial advisor and outside legal counsel, that failure to do so would reasonably be expected to violate its fiduciary duties to the Company and its shareholders under applicable Law, (iii) five (5) Business Days have elapsed since the Company has given written notice of such Intervening Event Termination to THL advising that it intends to take such action and specifying in reasonable detail the reasons therefor and including a reasonably detailed written description of the Intervening Event, (iv) during such five (5) Business Day period, the Company has considered and, if requested by THL, engaged in good faith discussions with THL regarding, any adjustment or modification to the terms of any such proposals or offers this Agreement proposed by THL, and (v) the status of any such discussions or negotiations.
Company Board (b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative acting upon recommendation of the Special Committee) or the Special Committee, following such five (5) Business Day period, again reasonably determines in good faith, after consultation with its financial advisor and outside legal counsel and taking into account any adjustment or modification to the terms of this Agreement proposed by THL, that failure to do so would reasonably be expected to violate its fiduciary duties to the Company or any Company Subsidiary of the obligations undertaken in this Section 6.05and its shareholders under applicable Law.
Appears in 3 contracts
Sources: Plan of Merger (Sogou Inc.), Merger Agreement (Sogou Inc.), Merger Agreement (Sohu.com LTD)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary shall, and that it shall cause its Affiliates, Representatives and any other agents to immediately cease any discussions, negotiations or communications with any party or parties with respect to any Competing Transaction. The Company also agrees promptly following public announcement of this Agreement to request each Person that has executed a confidentiality agreement in the past year in connection with its consideration of acquiring (whether by merger, acquisition, stock sale, asset sale or otherwise) the Company Subsidiary's Representatives not and was supplied with currently confidential information, if any, to return all confidential information heretofore furnished to such Person by or on behalf of the Company.
(b) The Company shall not, nor shall it authorize or permit any Affiliate or Representative of the Company to, (i) solicit, initiate, intentionally encourage, participate in or otherwise facilitate, directly or indirectly, initiateany inquiries relating to, or the submission of, any Competing Transaction or (ii) directly or indirectly, solicit, encourage initiate, intentionally encourage, participate in or otherwise facilitate (including by way of furnishing information) any inquiries discussions or the making of any proposalnegotiations regarding, or offer furnish to any Third Party any information or data with respect to a mergeror provide access to the properties, reorganizationoffices, share exchangebooks, consolidationrecords, business combinationofficers, recapitalization, liquidation, dissolution directors or similar transaction involvingemployees of, or take any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could reasonably be expected other action to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not toknowingly, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage solicit, initiate, intentionally encourage, participate in any negotiations concerning an Acquisition Proposal, or otherwise facilitate the making of any effort proposal that constitutes, or attempt may reasonably be expected to make or implement an Acquisition Proposal or accept an Acquisition Proposal; providedlead to, howeverany Competing Transaction. Notwithstanding the foregoing sentence, that nothing contained in this Agreement shall prevent if the Company receives a proposal or offer for a Superior Competing Transaction, then, prior to acceptance by Merger Sub for payment and payment by Merger Sub for Company Common Shares pursuant to the Company's Offer, the Company Board of Directors from and any of its advisors shall be permitted to contact such Third Party and its advisors solely for the purpose of clarifying the proposal and any material contingencies and the capability of consummation, and the Company may, subject to a good-faith determination by a majority of the members of the Company Board of Directors (in consultation with outside counsel) that the failure to take such action would result in a breach of the fiduciary duties of the Company Board of Directors to the Company Stockholders under applicable Law or Order, and further subject to the Company providing prior written notice to Parent of its decision to take such action and compliance by the Company with Section 6.4(d), furnish information with respect to the Company to, and participate in discussions and negotiations directly or through its Representatives with, such Third Party, subject to a confidentiality agreement not materially less favorable to the Company than the Confidentiality Agreement and which contains a one (1) year prohibition against such Third Party soliciting the employment of any employee of the Company.
(c) Neither the Company Board of Directors nor any committee thereof shall (i) complying with Rule 14e-2 promulgated under withdraw or modify, propose or resolve to withdraw or modify, in a manner adverse to Parent or Merger Sub, the Exchange Act with regard to an Acquisition Proposal; approval and recommendation by the Company Board of Directors of the Offer, the Merger, this Agreement, the Transaction Documents, the transactions contemplated hereby and thereby and the actions taken in connection herewith and therewith, (ii) engaging in any discussions approve or negotiations withrecommend, or providing any information topropose or resolve to approve or recommend, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or Competing Transaction, (iii) recommending such an unsolicited bona fide approve or recommend, or propose or resolve to approve or recommend, or execute or enter into, any Acquisition Agreement, (iv) approve or recommend, or propose or resolve to approve or recommend, or execute or enter into, any agreement (written Acquisition Proposal or oral) requiring it to abandon, terminate or fail to consummate the holders Offer, the Merger, this Agreement, any Transaction Document or the transactions contemplated hereby or thereby, (v) take any action to (A) redeem the Rights, (B) waive or amend any provision of the Company Common Stock if and only to Rights Agreement or (C) take any action with respect to, or make any determination under, the extent thatCompany Rights Agreement, in any such case as is referred to in clause permit or facilitate the consummation of a Competing Transaction, (iivi) take any action necessary to render the provisions of any Antitakeover Law inapplicable to any Competing Transaction, or (iiivii) propose or agree to do any of the foregoing constituting or related to, or which is intended to or would reasonably be expected to lead to, any Competing Transaction. Notwithstanding the foregoing, at any time prior to acceptance by Merger Sub for payment and payment by Merger Sub for Company Common Shares pursuant to the Offer, in response to a Superior Competing Transaction which was not solicited, initiated, intentionally encouraged, participated in or otherwise facilitated by the Company in breach of Section 6.4(b), (A) the Company's Company Board of Directors concludes may, if it determines in good faith (after consultation with its legal counsel and financial advisorsoutside counsel) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, failure to do so would result in a transaction more favorable breach of the fiduciary duties of the Company Board of Directors to holders the Company Stockholders under applicable Law or Order, modify, or propose or resolve to modify, in a manner adverse to Parent or Merger Sub, the approvals and recommendations of the Company Common Stock than Board of Directors of the transaction Offer, the Merger, the transactions contemplated thereby or by this Agreement the Transaction Documents, but only (y) at a time that is after the tenth (10th) Business Day following Parent's receipt of written notice advising Parent that the Company Board of Directors is prepared to take such action (during which period the Company shall negotiate in good faith with Parent concerning any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior New Parent Proposal"), specifying therein all of the terms and conditions of such Superior Competing Transaction, and identifying the Person or group making such Superior Competing Transaction and (Bz) if, after the Company's end of such ten (10) Business Day period, the Company Board of Directors determines in good faith (after consultation with legal counsel the Independent Advisor and outside counsel) that such action is necessary for it proposed transaction continues to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with be a Superior Proposal by Competing Transaction, after taking into account any such Person, New Parent Proposal. The Company shall not during the Company's Board term of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality this Agreement and (D) prior to providing release any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested Third Party from, or agree to amend or waive any such discussions provision of any confidentiality agreement, and the Company shall take all reasonable efforts to enforce, to the fullest extent permitted by applicable Laws, each confidentiality agreement entered into pursuant to this Section 6.4 and any other confidentiality agreement to which the Company is or negotiations sought becomes a party.
(d) In addition to the obligations set forth in Sections 6.4(a), (b) and (c), the Company shall advise Parent orally and, if requested by Parent, in writing of (i) any Competing Transaction or any offer, proposal or inquiry with respect to or which could reasonably be initiated expected to lead to any Competing Transaction received by any officer or continued withdirector of the Company or, to the Knowledge of the Company, any Company Subsidiary or any other Representative of their Representatives indicatingthe Company, in connection with such notice, the name of such Person and (ii) the terms and conditions of such Competing Transaction (including a copy of any proposals written proposal) and (iii) the identity of the Person or offersgroup making the offer, proposal or inquiry for any such Competing Transaction immediately (but in any event within twenty-four (24) hours) following receipt by the Company or any officer or director of the Company or, to the Knowledge of the Company, any other 38 Representative of the Company of such Competing Transaction offer, proposal or inquiry. The Company shall have no obligation to update Parent unless and until (y) such offer, proposal or inquiry is withdrawn or (z) the Company Board of Directors determines that such Competing Transaction is a Superior Competing Transaction, at which point the Company will follow the procedures set forth in Section 6.4(c). The Company agrees to notify Parent immediately if the Company Board of Directors determines that it will immediately cease a Competing Transaction is not a Superior Competing Transaction.
(e) Nothing contained in this Section 6.4 or any other provision hereof shall prohibit the Company or the Company Board of Directors from taking and cause disclosing to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore the Company Stockholders pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act a position with respect to any Acquisition Proposal. The a tender or exchange offer by a Third Party which is consistent with its obligations hereunder; provided, however, that neither the Company agrees that it shall keep IHK informednor the Company Board of Directors may either (i) except as provided by this Section 6.4, on modify, or propose publicly to modify, in a current basismanner adverse to Parent and Merger Sub, the approvals or recommendations of the status and terms Company Board of any such proposals Directors of the Offer, the Merger or offers and the status of any such discussions this Agreement or negotiations(ii) approve or recommend a Competing Transaction, or propose publicly to approve or recommend a Competing Transaction.
(bf) The Nothing in this Section 6.4 shall (i) permit the Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative terminate this Agreement (except as expressly provided in Article VIII) or (ii) affect any other obligations of the Company or any Company Subsidiary of the obligations undertaken in under this Section 6.05Agreement.
Appears in 3 contracts
Sources: Merger Agreement (Ivillage Inc), Merger Agreement (Ivillage Inc), Merger Agreement (Promotions Com Inc)
No Solicitation of Transactions. (a) The Company agrees that neither that, from and after the date hereof until the earlier of the Effective Time or the termination of this Agreement in accordance with Article VIII, it nor any Company Subsidiary shallshall not, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, initiate, solicit, solicit or encourage or otherwise facilitate (including by way of furnishing information) any inquiries or the making of any proposal, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an a "Company Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shallshall not, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data relating to the Company or any Company Subsidiary to any Person relating to an a Company Acquisition Proposal or engage in any negotiations concerning an a Company Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an a Company Acquisition Proposal or accept an a Company Acquisition Proposal; provided, however, that nothing contained in this Agreement Section 6.04(a) shall prevent the Company or the Company's Company Board of Directors from (i) complying with Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act with regard to an a Company Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Company Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Company Acquisition Proposal to the holders of Company Common Stock if and only to the extent thatif, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Company Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Company Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Company Acquisition Proposal being hereinafter referred to in this Agreement as a "Company Superior Proposal"), (B) the Company's Company Board of Directors determines in good faith after consultation with outside legal counsel (who may be the Company's regularly engaged outside legal counsel) that such action is could reasonably be deemed to be necessary for it to act in a manner consistent with its fiduciary duties under applicable lawLaw, (C) prior to providing any information or data regarding the Company to any Person or any of such Person's Representatives in connection with a Company Superior Proposal by any such Person, the Company's Board of Directors Company receives from such Person an executed confidentiality agreement on terms substantially similar to at least as restrictive on such Person as those contained in the Confidentiality Agreement and Agreement, (D) prior to providing any information or data to any Person or any of such Person's Representatives or entering into discussions or negotiations with any Person or any of such Person's Representatives in connection with a Company Superior Proposal by such Person, the Company's Board of Directors Company notifies IHK Parent promptly of the receipt of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives Superior Proposal indicating, in connection with such notice, the name of such Person and attaching a copy of the terms proposal or offer or providing a complete written summary thereof, and conditions (E) the Company has not breached its obligations under the first sentence of any proposals or offersthis Section 6.04(a). The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Company Acquisition Proposal. The Company agrees that it shall keep IHK Parent informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiations.
(b) . The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken in this Section 6.056.04(a).
(b) Parent agrees that, from and after the date hereof until the earlier of the Effective Time or the termination of this Agreement in accordance with Article VIII, it shall not, and that it shall cause its Representatives not to, directly or indirectly, initiate, solicit or encourage any inquiries or the making of any proposal, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, Parent or any Parent Subsidiary that, in any such case, could reasonably be expected to preclude the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as a "Parent Acquisition Proposal"). Parent further agrees that it shall not, and that it shall cause its Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data relating to Parent or any Parent Subsidiary to any Person relating to a Parent Acquisition Proposal or engage in any negotiations concerning a Parent Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement a Parent Acquisition Proposal or accept a Parent Acquisition Proposal; provided, however, that nothing contained in this Section 6.04(b) shall prevent Parent or the Parent Board from (i) complying with Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act with regard to a Parent Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited written Parent Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited written Parent Acquisition Proposal to the holders of Parent Common Stock if, in any such case as is referred to in clause (ii) or (iii), (A) the Parent Board concludes in good faith (after consultation with its financial advisors) that such Parent Acquisition Proposal would, if consummated, result in a transaction more favorable to holders of Parent Common Stock than the transaction contemplated by this Agreement (any such more favorable Parent Acquisition Proposal being referred to in this Agreement as a "Parent Superior Proposal"), (B) the Parent Board determines in good faith after consultation with outside legal counsel (who may be Parent's regularly engaged outside legal counsel) that such action could reasonably be deemed to be necessary for it to act in a manner consistent with its fiduciary duties under applicable Law, (C) prior to providing any information or data regarding Parent or any Parent Subsidiary to any Person or any of such Person's Representatives in connection with a Parent Superior Proposal by such Person, Parent receives from such Person an executed confidentiality agreement on terms at least as restrictive on such Person as those contained in the Confidentiality Agreement, (D) prior to providing any information or data to any Person or any of such Person's Representatives or entering into discussions or negotiations with any Person or any of such Person's Representatives in connection with a Parent Superior Proposal by such Person, Parent notifies the Company promptly of the receipt of such Parent Superior Proposal indicating, in connection with such notice, the name of such Person and attaching a copy of the proposal or offer or providing a complete written summary thereof, and (E) Parent has not breached its obligations under the first sentence of this Section 6.04(b). Parent agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Parent Acquisition Proposal. Parent agrees that it shall keep the Company informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiations. Parent agrees that it will take the necessary steps to promptly inform each Representative of Parent of the obligations undertaken in this Section 6.04(b).
Appears in 3 contracts
Sources: Merger Agreement (Careinsite Inc), Merger Agreement (Medical Manager Corp/New/), Merger Agreement (Healtheon Webmd Corp)
No Solicitation of Transactions. (a) The Company agrees that neither it will not, nor will it permit any Company Subsidiary shallof its Subsidiaries to, and that it shall will instruct and cause its and each Company Subsidiary's Representatives not to, directly or indirectly, initiate, (i) solicit, initiate or knowingly encourage or otherwise facilitate (including by way of furnishing non-public information) ), or take any other action to knowingly facilitate, any inquiries or the making of any proposalproposal or offer (including any proposal or offer to the Company’s stockholders), with respect to any Competing Company Transaction, (ii) enter into, maintain, continue or otherwise engage or participate in any discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer with respect to a mergerCompeting Company Transaction, reorganization(iii) agree to, share exchangeapprove, consolidationendorse, business combinationrecommend or consummate any Competing Company Transaction, recapitalization(iv) enter into any Competing Company Transaction Agreement or (v) resolve, liquidation, dissolution propose or similar transaction involvingagree, or authorize or permit any purchase or sale of all or Representative, to do any significant portion of the assets foregoing. The Company shall, and shall cause its Subsidiaries to, and shall instruct and cause its Representatives to, immediately cease and cause to be terminated all existing discussions or 20% or more negotiations with any Persons (other than Parent and its Affiliates) conducted prior to the execution of the equity securities of, this Agreement by the Company or any of its Subsidiaries or Representatives with respect to a Competing Company Subsidiary thatTransaction. The Company shall not, and shall cause its Subsidiaries not to, and the Company shall instruct and cause its Representatives not to, release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it or one of its Affiliates is a party in connection with a Competing Company Transaction, unless the Company Board determines in its good faith judgment, after consulting with outside legal counsel, that failure to take any such action would be inconsistent with the Company Board’s fiduciary duties to the Company or its stockholders under Applicable Law. The Company shall, and shall cause its Subsidiaries to, promptly request each Person (other than Parent and its Affiliates) that has heretofore executed a confidentiality agreement with the Company or any of its Subsidiaries in connection with such Person’s consideration of a Competing Company Transaction (whether by merger, acquisition of stock or assets or otherwise), to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement and, if requested by Parent, to seek to enforce such Person’s obligation to do so.
(b) The Company shall promptly (and in any event within twenty-four (24) hours after the Company attains knowledge thereof) notify Parent, orally and in writing, after the receipt by the Company or any of its Representatives of any proposal, inquiry, offer or request (or any amendment thereto) with respect to a Competing Company Transaction, including any request for discussions or negotiations and any request for information relating to the Company or any of its Affiliates or for access to the business, properties, assets, books or records of the Company or any of its Affiliates. Such notice shall indicate the identity of the Person making such proposal, inquiry, offer or request and a description of such proposal, inquiry, offer or request, including in reasonable detail the terms and conditions (if any) of such proposed Competing Company Transaction, and the Company shall promptly (and in any event within twenty-four (24) hours after receipt by the Company) provide to Parent copies of any written materials received by the Company in connection with any of the foregoing. The Company agrees that it shall keep Parent reasonably informed of the status and reasonable details of (including discussions with respect thereto or amendments to) any such proposal, inquiry, offer or request. The Company agrees that it shall substantially simultaneously provide to Parent any non-public information concerning the Company that may be made available pursuant to Section 7.01(c) to any other Person in response to any such proposal, inquiry, offer or request (including discussions with respect thereto or any amendment to) unless such information has previously been provided or made available by the Company to Parent.
(c) Notwithstanding anything to the contrary in this Section 7.01, at any time prior to the Acceptance Time, the Company may furnish information to, and enter into discussions and negotiations with, any Person (or any of such Person’s Representatives) who has made a written, bona fide proposal or offer with respect to a Competing Company Transaction that did not arise or result from any material breach of Section 7.01(a) if, prior to furnishing such information and entering into such discussions and negotiations, (A) the Company Board has determined, in any such caseits good faith judgment (after consulting with a financial advisor of nationally recognized reputation and outside legal counsel), could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any that such proposal or offer being hereinafter referred constitutes, or is reasonably likely to as an "Acquisition lead to, a Superior Proposal"). The , (B) the Company further agrees that neither it nor any Company Subsidiary shallhas provided written notice to Parent of its intent to furnish information to, and enter into discussions and negotiations with, such Person and (C) the Company has obtained (to the extent not already obtained) from such Person an Acceptable Confidentiality Agreement (it being understood that it an Acceptable Confidentiality Agreement and any related agreements shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have include any discussion provision granting such Person exclusive rights to negotiate with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or having the Company's effect of prohibiting the Company from satisfying its obligations under this Agreement) and, promptly upon its execution, delivered to Parent a copy of such Acceptable Confidentiality Agreement.
(d) Except as set forth in this Section 7.01(d), neither the Company Board of Directors from nor any committee thereof shall (i) complying with Rule 14e-2 promulgated under withdraw, qualify, modify, amend or fail to make, or propose publicly to withdraw, qualify, modify or amend the Exchange Act with regard Company Board Recommendation (or fail to an Acquisition Proposal; include the Company Board Recommendation in the Schedule 14D-9), (ii) engaging in make any discussions public statement or negotiations with, or providing take any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; action inconsistent with the Company Board Recommendation or (iii) recommending such an unsolicited bona fide written Acquisition Proposal approve or adopt, or recommend the approval or adoption of, or publicly propose to approve or adopt, any Competing Company Transaction (any of the holders of Company Common Stock if and only to the extent thatactions described in (i), in any such case as is referred to in clause (ii) or (iii), a “Change in the Company Board Recommendation”). Notwithstanding the foregoing:
(i) the Company Board may make a Change in the Company Board Recommendation if (A) the Company's Board of Directors concludes other than in good faith (after consultation connection with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects or as a result of the Acquisition Proposal making of a Competing Company Transaction, a material development or change in circumstances that was not known or, with respect to developments or changes in circumstances relating to the Company and its Subsidiaries, reasonably foreseeable to the Person making Company Board on the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders date of Company Common Stock than the transaction contemplated by this Agreement and occurs or arises after the date of this Agreement, which material development or change in circumstances becomes known to the Company Board prior to the Acceptance Time (any such more favorable Acquisition Proposal material development or change in circumstances being hereinafter referred to as an “Intervening Event”) (it being understood that in no event shall the receipt, existence or terms of a "Superior Proposal"Competing Company Transaction constitute an Intervening Event), (B) the Company's Company Board of Directors determines in its good faith judgment, after consultation with legal counsel that such action is necessary for it to act in a manner consistent consulting with its outside legal counsel, that an Intervening Event has occurred and a failure to make a Change in the Company Board Recommendation would be inconsistent with the Company Board’s fiduciary duties to the Company or its stockholders under applicable lawApplicable Law, (C) prior the Company Board does not effect, or cause the Company to providing effect, a Change in the Company Board Recommendation at any information time within three Business Days, or data such shorter period in the event that the Acceptance Time is scheduled to occur in less than three Business Days, after Parent receives written notice from the Company that the Company Board has determined that an Intervening Event requires the Company Board to effect, or cause the Company to effect, a Change in the Company Board Recommendation and describing in reasonable detail the circumstances underlying such determination (provided, a new notice shall be required with respect to any Person material change in connection with circumstances and a Superior Proposal by any such Personnew notice period of three Business Days, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained or shorter period in the Confidentiality Agreement circumstances above, shall begin) and (D) during such applicable period, the Company engages in good faith negotiations with Parent (to the extent that Parent desires to negotiate) to amend this Agreement in such a manner that obviates the need for the Company Board to effect, or cause the Company to effect, a Change in the Company Board Recommendation; or
(ii) if at any time prior to providing the Acceptance Time and in response to the receipt of an offer or proposal with respect to a Competing Company Transaction that did not arise or result from any information or data to any Person or entering into discussions or negotiations with any Personmaterial breach of Section 7.01(a), the Company's Company Board determines in its good faith judgment (after consulting with a financial advisor of Directors notifies IHK promptly of nationally recognized reputation and outside legal counsel) that such inquiriesoffer or proposal constitutes a Superior Proposal and determines in its good faith judgment, proposals after consulting with its outside legal counsel, that a failure to make a Change in the Company Board Recommendation with respect to such Superior Proposal would be inconsistent with the Company Board’s fiduciary duties to the Company or offers received byits stockholders under Applicable Law, any then the Company Board may, with respect to such information requested fromSuperior Proposal, (x) make a Change in the Company Board Recommendation or any (y) cause the Company to terminate this Agreement pursuant to Section 9.01(f) in order to enter into a definitive agreement providing for such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicatingSuperior Proposal if, in connection with such noticeeach case:
(1) the Company has provided written notice to Parent (a “Notice of Superior Proposal”) advising Parent that the Company Board has received a Superior Proposal promptly after the Company Board determines it has received a Superior Proposal, stating that the name of such Person Company Board intends to make a Change in the Company Board Recommendation or terminate this Agreement pursuant to Section 9.01(f) and describing in reasonable detail the terms and conditions of such Superior Proposal; and
(2) Parent does not, within three Business Days of receipt of the Notice of Superior Proposal (the “Notice Period”), make a written offer or proposal to revise the terms of this Agreement (any proposals or offers. The such offer, a “Revised Transaction Proposal”) in a manner that the Company agrees that it will immediately cease Board determines in its good faith judgment, after consulting with a financial advisor of nationally recognized reputation and cause outside legal counsel, to be terminated at least as favorable to the Company’s stockholders as such Superior Proposal; provided, however, that, during the Notice Period, the Company shall negotiate in good faith with Parent (to the extent Parent desires to negotiate) regarding any existing activitiesRevised Transaction Proposal; provided, discussions or negotiations with further, that any parties conducted heretofore amendment to the terms of such Superior Proposal during the Notice Period shall require a new written notice of the material terms of such amended Superior Proposal from the Company and an additional three Business Day Notice Period, including with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiationsCompany’s obligations to negotiate in good faith with Parent.
(be) The Nothing contained in this Agreement shall prohibit the Company agrees or the Company Board from (i) disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, or from issuing a “stop, look and listen” statement pending disclosure of its position thereunder, or (ii) making any disclosure to its stockholders if the Company Board determines in its good faith judgment, after consulting with its outside legal counsel, that it will take a failure to make such disclosure would be inconsistent with the necessary steps Company Board’s fiduciary duties to promptly inform each the Company Subsidiary or its stockholders under Applicable Law; provided, however, that (1) in no event shall this Section 7.01(e) affect the obligations specified in Section 7.01(d) and each Representative (2) any such disclosure (other than issuance by the Company of a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) that addresses or relates to the approval, recommendation or declaration of advisability by the Company Board with respect to this Agreement or a Competing Company Transaction shall be deemed to be a Change in the Company Board Recommendation unless the Company Board in connection with such communication publicly states that its recommendation with respect to this Agreement has not changed or refers to the prior recommendation of the Company or Board, without disclosing any Change in the Company Subsidiary of the obligations undertaken in this Section 6.05Board Recommendation.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Essendant Inc), Merger Agreement (Staples Inc)
No Solicitation of Transactions. (a) The Neither the Company agrees that neither it nor any Company Subsidiary through any officer, director, advisor or other person acting on its behalf shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, initiate, solicit, initiate or encourage or otherwise facilitate (including by way of furnishing information) any inquiries or the making of any proposal, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (way any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company may furnish information to and negotiate with a third party (a "Potential Acquirer") if the Potential Acquirer has, in circumstances not involving any breach by the Company of the foregoing provisions, made a tender or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations withexchange offer for, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal a proposal to the holders Board to acquire 20% or more of Company Common Stock if the Shares, and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes determines in good faith (after consultation with faith, based on the advice of outside counsel, that the failure to do so would be reasonably likely to constitute a breach of its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects fiduciary duties to the stockholders of the Acquisition Proposal and the Person making the Acquisition ProposalCompany under applicable law, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board is advised by its financial advisor that such Potential Acquirer has the financial wherewithal to consummate the acquisition and such acquisition would be more favorable to the stockholders of Directors the Company than the Transactions contemplated by this Agreement.
(b) Except as set forth in this Section 7.05(b), neither the Board nor any committee thereof shall (i) withdraw or modify, or propose to withdraw or modify, in a manner adverse to CRI, Holdings or Purchaser, the approval or recommendation by the Board or any such committee of this Agreement, the Offer or the Merger, (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal or (iii) enter into any agreement with respect to any Acquisition Proposal. Notwithstanding the foregoing, in the event that, prior to the Share Acceptance Date pursuant to the Offer, the Board determines in good faith after consultation with legal counsel that such action it is necessary for it required to act in a manner consistent with do so by its fiduciary duties under applicable lawlaw after having received advice from outside legal counsel, the Board may withdraw or modify its approval or recommendation of the Offer and the Merger, but only to terminate this Agreement in accordance with Section 9.01(d)(ii) (C) prior and, concurrently with such termination, cause the Company to providing any information or data enter into an agreement with respect to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and Proposal).
(Dc) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will shall, and shall direct or cause its directors, officers, employees, representatives and agents to, immediately cease and cause to be terminated any existing activities, discussions or negotiations with any third parties conducted heretofore that may be ongoing with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiations.
(bd) The Company agrees that it will take the necessary steps to shall promptly inform each Company Subsidiary and each Representative advise CRI in writing (within 48 hours) of the Company or any Company Subsidiary material terms and conditions of the obligations undertaken in this Section 6.05such Acquisition Proposal.
Appears in 3 contracts
Sources: Merger Agreement (Comstock Resources Inc), Merger Agreement (Devx Energy Inc), Merger Agreement (Comstock Resources Inc)
No Solicitation of Transactions. (a) The Subject to Section 7.03(c)(i), the Company agrees that neither it nor any Company Subsidiary shallwill not, and that it shall (A) will cause its Subsidiaries and its and their respective officers, directors and employees, and (B) will use its reasonable best efforts to cause its and each its Subsidiaries respective investment bankers, attorneys and other representatives and agents retained by the Company Subsidiary's Representatives or any of its Subsidiaries not to, directly or indirectly, initiate, to (i) solicit, initiate or knowingly encourage or otherwise facilitate (including by way of furnishing information) any inquiries or the making of any proposal, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, Acquisition Proposal or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could inquiries that would reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (lead to any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor ; (ii) engage in negotiations or discussions with, or furnish any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to to, any Person relating to an Acquisition Proposal Proposal; (iii) enter into any agreement or engage agreement in principle with respect to any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an waive any standstill provision; or (iv) otherwise cooperate with or assist or participate in, or knowingly facilitate any Acquisition Proposal; provided, however, Proposal or any inquiry that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard would reasonably be expected to lead to an Acquisition Proposal; (ii) engaging in any discussions . Promptly following the execution of this Agreement, the Company shall, and shall direct or negotiations withcause its Subsidiaries and its and their officers, or providing any information directors, employees and investment bankers, attorneys and other representatives and agents to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore that may be ongoing with respect to any Acquisition Proposal. The Proposal as of the date hereof; provided, however, that the obligations set forth in this Section 7.03(a) shall not prohibit the Company agrees from entertaining an Acquisition Proposal in accordance with Section 7.03(c)(i) that it shall keep IHK informedmay be made by any such Person after the date hereof, on a current basisprovided, further, that the Company’s release or waiver, in response to an unsolicited inquiry, of the status and terms of any such proposals or offers and the status of any such discussions or negotiations“standstill” to which it is a party shall not violate this Section 7.03(a).
(b) Subject to Section 7.03(c)(ii), neither the Board nor any committee thereof shall (i) withdraw or modify in a manner adverse to Buyer, the approval or recommendation by the Board or any committee of the Board, of the Offer or this Agreement, or (ii) approve or recommend any Acquisition Proposal of any Person other than Buyer. It being understood that a “stop, look and listen” statement or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act shall not be deemed a breach of this Section 7.03(b).
(c) Notwithstanding any other provision of this Agreement:
(i) the Company and the Board may participate in discussions or negotiations with or furnish information to any Person if either (A) the Board determines in good faith, after consultation with its financial advisors, that such Person is reasonably likely to submit to the Company an Acquisition Proposal that is a Superior Proposal, or (B) the Board determines in good faith, after consultation with its legal counsel, that the failure to participate in such discussions or negotiations or to furnish such information would constitute a breach of the directors’ fiduciary duties under applicable Laws of The Netherlands; provided that any such Person to whom information is furnished shall be required to execute a confidentiality agreement with the Company agrees on terms no less favorable in the aggregate to the Company than those contained in the Nondisclosure Agreement, except that it will take such confidentiality agreement (x) may contain a less restrictive or no standstill restriction and may specifically release such Person from any existing standstill restriction, and (y) shall expressly not prohibit, or adversely affect the necessary steps to promptly inform each Company Subsidiary and each Representative rights of the Company thereunder upon, compliance by the Company with any provision of this Agreement; and
(ii) the Board may be permitted to (A) withdraw or modify in a manner adverse to Buyer, its approval or recommendation of the Offer or this Agreement and make disclosure thereof to the holders of Company Shares, (B) take and disclose to the holders of Company Shares a favorable position with respect to a Superior Proposal (each a “Change in Recommendation”) or (C) make “stop, look and listen” statements or similar communications of the type contemplated by Rule 14d-9(f) under the Exchange Act or disclosure in favor of the Offer to the holders of Company Shares, in each case either with respect to or as a result of a Superior Proposal, if the Board determines in good faith, after consultation with its legal counsel, that the failure to take such action would constitute a breach of the Company’s disclosure obligations or the directors’ fiduciary duties under applicable Laws of The Netherlands, as applicable; provided, however, that the Board shall not be entitled to make a Change in Recommendation until three full business days following delivery of written notice to Buyer (a “Section 7.03(c)(ii) Notice”) from the Board advising Buyer that the Board intends to take such action, including the identity of the Person making the Superior Proposal, a description of the terms and conditions of any such Superior Proposal and a copy of the proposed transaction agreement for any such Superior Proposal in the form to be entered into (it being understood and agreed that, in the event of an amendment to the financial terms or other material terms of such Superior Proposal, the Board shall not be entitled to exercise such right based on such Superior Proposal, as so amended, until three full business days following delivery of written notice to Buyer of a Section 7.03(c)(ii) Notice with respect to such Superior Proposal as so amended). In determining whether to terminate this Agreement in response to a Superior Proposal or to make a Change in Recommendation, the Board shall take into account any proposals made by Buyer to amend the terms of this Agreement.
(d) Subject to the foregoing, the Company shall promptly (and in any event within two calendar days) notify Buyer after receipt of any Acquisition Proposal or any request for nonpublic information relating to the Company Subsidiary in connection with an Acquisition Proposal or for access to the properties, books or records of the obligations undertaken Company by any Person that informs the Board that it is considering making, or has made, an Acquisition Proposal. Such notice to Buyer shall indicate in reasonable detail the identity of the offeror and the terms and conditions of such proposal, offer or request.
(e) For purposes of this Agreement, a “Superior Proposal” means any Acquisition Proposal, not solicited or initiated in violation of this Section 6.057.03, made by a Person other than Buyer, Parent or any affiliate of the Company which the Board determines in good faith, after consultation with its financial advisor, to be more favorable to the Company and its stakeholders than the transactions contemplated by this Agreement. For purposes of the definition of Superior Proposal, the term “Acquisition Proposal” shall have the meaning assigned to such term in Section 1.01, except that all references to 25% therein shall be deemed to be references to 50%.
Appears in 3 contracts
Sources: Share Purchase Agreement (Aptalis Holdings Inc.), Share Purchase Agreement (Eurand N.V.), Share Purchase Agreement (Axcan Intermediate Holdings Inc.)
No Solicitation of Transactions. The Stockholder hereby agrees that, prior to the Expiration Time (a) The Company agrees that neither it nor any Company Subsidiary shallas defined below), and that it the Stockholder shall cause its and each Company Subsidiary's Representatives not tonot, directly or indirectly, initiateincluding through any of its officers, directors or agents: (a) solicit, encourage initiate or otherwise knowingly encourage, induce or facilitate (including by way of furnishing information) any inquiries the communication, making, submission or the making announcement of any proposal, Acquisition Proposal or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution Acquisition Inquiry or similar transaction involving, or take any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, action that could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating lead to an Acquisition Proposal or engage in Acquisition Inquiry; (b) furnish any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent non-public information regarding the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior or in response to an Acquisition Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar or Acquisition Inquiry; (c) engage in discussions (other than to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to inform any Person or entering into discussions of the existence of the provisions in this Section 1.7) or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal or Acquisition Inquiry; (d) approve, endorse or recommend any Acquisition Proposal; (e) execute or enter into any letter of intent or any Contract contemplating or otherwise relating to any Acquisition Transaction (other than an Acceptable Confidentiality Agreement (as defined in the Merger Agreement) permitted under the Merger Agreement); or (f) publicly propose to do any of the foregoing. The Company agrees Stockholder hereby represents and warrants that it shall keep IHK informed, on a current basis, the Stockholder has read Section 6.4 (No Solicitation) of the status Merger Agreement and terms of agrees not to engage in any such proposals actions prohibited thereby. Notwithstanding the foregoing, the Stockholder will not be responsible for the breaches by its officers, directors or offers and the status of any such discussions or negotiations.
(b) The Company agrees agents that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of have otherwise entered into a separate support agreement with the Company or any Company Subsidiary of (in a form reasonably acceptable to Parent), unless the obligations undertaken in this Section 6.05Stockholder knowingly and intentionally caused such breach.
Appears in 3 contracts
Sources: Merger Agreement (Ocugen, Inc.), Support Agreement (Carisma Therapeutics Inc.), Support Agreement (Ocugen, Inc.)
No Solicitation of Transactions. (a) The Unless and until this Agreement is terminated in accordance with its terms, neither the Company agrees that neither it nor any Company Subsidiary its Subsidiaries shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, through any officer, director, agent or otherwise, initiate, solicit, solicit or knowingly encourage or otherwise facilitate (including by way of furnishing information) non-public information or assistance), or take any other action to facilitate knowingly, any inquiries or the making of any proposalproposal that constitutes, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could may reasonably be expected to interfere lead to, any Competing Transaction, or enter into or maintain or continue discussions or negotiate with the completion any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, or authorize or knowingly permit any of the Merger officers, directors or the employees of such party or any of its Subsidiaries or any investment banker, financial advisor, attorney, accountant or other transactions contemplated representative retained by this Agreement (such party or any of such party's Subsidiaries to take any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shallaction, and that it the Company shall cause its notify Buyer orally (within one Business Day) and each in writing (as promptly as practicable) of all of the relevant details relating to all inquiries and proposals which any officer or director of the Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data may receive relating to any Person relating of such matters and if such inquiry or proposal is in writing, the Company shall deliver to an Acquisition Proposal Buyer a copy of such inquiry or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposalproposal; provided, however, that nothing contained in this Agreement Section shall prevent prohibit the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions a tender or negotiations withexchange offer or prohibit the Board from taking such other actions as may be required to comply with its fiduciary obligations. If the Board determines with the advice of counsel that failure to do so could be held to violate its fiduciary duties, or providing any it may provide information to, any Person in response to an unsolicited proposal. If the Company receives a bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to proposal for a Competing Transaction that the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes determines in good faith (after consultation based on the advice of a nationally recognized financial advisor) may provide greater value to the Company and its stockholders than this Agreement, it may enter into negotiations with its legal counsel and financial advisors) that respect to such Acquisition Proposal is reasonably capable proposal. The Company will notify Buyer of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred superior proposal not less than two Business Days prior to as entering into any definitive agreement with respect to a "Superior Proposal")Competing Transaction; provided, (B) however, that in no event shall the Company enter into a definitive agreement with respect to a Competing Transaction less than five Business Days after the Company's Board initial notification to Buyer of Directors determines in good faith after consultation with legal counsel that such action is necessary for it an inquiry or proposal relating to act in a manner consistent with its fiduciary duties under applicable lawCompeting Transaction. Within the two-Business-Day or five-Business-Day period referred to above, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person Buyer may propose an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiationsimproved transaction.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken in this Section 6.05.
Appears in 3 contracts
Sources: Stock Purchase Agreement (Lfsri Ii Alternative Partnership L P), Stock Purchase Agreement (Prometheus Southeast Retail LLC), Stock Purchase Agreement (Fac Realty Trust Inc)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not Subsidiary and Company Representative to, directly or indirectly, initiate, solicit, encourage or otherwise facilitate (including by way of furnishing information) any inquiries or the making of any proposal, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore Third Parties (other than the Parent Representatives) that may be ongoing as of the date hereof with respect to a Takeover Proposal. The Company shall not, and shall cause each Company Subsidiary and Company Representative not to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing nonpublic information), any inquiries or the making of any proposal or offer (including any proposal or offer to the Company’s stockholders) that constitutes, or may reasonably be expected to lead to, any Takeover Proposal, (ii) enter into any Takeover Proposal Agreement, (iii) enter into, maintain, continue or otherwise engage or participate in any negotiations or discussions with any Person in furtherance of such inquiries or to obtain a proposal or offer that constitutes, or may reasonably be expected to lead to a Takeover Proposal, (iv) agree to, approve, endorse or recommend any Takeover Proposal, (v) take any action to approve a Third Party becoming an “interested stockholder”, or to approve any transaction, for purpose of Section 203 of the DGCL or (vi) resolve, propose or agree, or authorize or permit any Company Representative, to do any of the foregoing. The Company acknowledges and agrees that the doing of any of the foregoing by any of the Company Subsidiaries or any Company Representative shall be deemed to be a breach by the Company of this Section 6.4(a). Unless such action would be inconsistent with the Company Board’s fiduciary obligations to the Company and its stockholders under applicable Law (in which case such release or waiver shall also apply to the Confidentiality Agreement, as applicable), the Company shall not, and shall not permit any Company Subsidiary to, release any Third Party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company shall, to the extent possible, promptly take all steps necessary to terminate or cause to be terminated any such waiver previously granted with respect to any Acquisition provision of any such confidentiality or standstill agreement. The Company shall promptly request each Person that has heretofore executed a confidentiality agreement in connection with such Person’s consideration of acquiring (whether by merger, acquisition of stock or assets or otherwise) the Company or any Company Subsidiary, to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement and, if requested by Parent, to enforce such Person’s obligation to do so.
(b) Notwithstanding any provisions of this Section 6.4, at any time prior to the Acceptance Time, the Company may (i) provide access to its properties, Contracts, personnel, books and records and furnish information and data with respect to the Company and the Company Subsidiaries to, and (ii) participate in discussions or negotiations with, a Person making a Takeover Proposal that did not arise or result from a violation of this Section 6.4 if, prior to providing such access, furnishing such information and entering into such discussions or negotiations, the Company Board has (A) determined in its good faith judgment (after having received the advice of its outside legal counsel and financial advisors of internationally recognized reputation) that (1) such Takeover Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal and (2) the failure to furnish such information to, or enter into such discussions with, the Person who made such Takeover Proposal would be reasonably expected to be inconsistent with the Company Board’s fiduciary obligations to the Company and its stockholders under applicable Law, (B) provided written notice to Parent of its intent to furnish information or enter into discussions with such Person at least twenty-four (24) hours prior to taking any such action, and (C) obtained from such Person an Acceptable Confidentiality Agreement (it being understood that (1) the Company may enter into an Acceptable Confidentiality Agreement without a “standstill” or similar provision or with a “standstill” or similar provision less restrictive with respect to such Person than the terms of any “standstill” or similar provision in the Confidentiality Agreement if it waives or similarly modifies the “standstill” or similar provision in the Confidentiality Agreement and (2) an Acceptable Confidentiality Agreement and any related agreements shall not include any provision granting such Person exclusive rights to negotiate with the Company or having the effect of prohibiting the Company from satisfying its obligations under this Agreement) and, concurrently with the notice provided in clause (ii)(B), delivered to Parent a copy of such Acceptable Confidentiality Agreement (for informational purposes only).
(c) Except as set forth in this Section 6.4(c) or Section 6.4(d), neither the Company Board nor any committee thereof may (i) withdraw (or not continue to make), modify, qualify or amend, or publicly propose to withdraw (or not continue to make), modify, qualify or amend, the Company Board Recommendation, (ii) make any public statement or take any action inconsistent with the Company Board Recommendation or (iii) approve, recommend or adopt, or publicly propose to approve, recommend or adopt, any other transaction of the type described in the definition of “Takeover Proposal” (any action described in the foregoing clauses
(i) (iii), a “Company Adverse Recommendation Change”). Notwithstanding the foregoing, if at any time prior to the Acceptance Time and in response to the receipt of a Superior Proposal that did not arise or result from any breach of this Section 6.4(c), the Company Board determines in its good faith judgment (after having received the advice of its outside legal counsel), that the failure by the Company Board to (A) make a Company Adverse Recommendation Change, (B) terminate this Agreement or (C) approve, endorse, adopt, recommend or enter into any Takeover Proposal Agreement with respect to such Superior Proposal, in each case, would be inconsistent with the Company Board’s fiduciary obligations to the Company and its stockholders under applicable Law, the Company Board may, with respect to such Superior Proposal, take any of the actions set forth in the foregoing clauses (A), (B) and (C); provided, that the Company Board shall not be entitled to exercise its right to take any of the actions set forth in the foregoing clauses (A), (B) or (C) pursuant to this Section 6.4(c) unless:
(1) the Company has provided written notice to Parent (a “Notice of Superior Proposal”) advising Parent that the Company Board has received a Superior Proposal promptly after the Company Board determines it has received a Superior Proposal, stating that the Company Board intends to take any of the actions set forth in the foregoing clauses (A), (B) and (C) and the manner in which it intends to do so, specifying the information required to be included in any notice required to be delivered to Parent under Section 6.4(e);
(2) Parent does not, within three (3) Business Days of receipt of the Notice of Superior Proposal (the “Notice Period”), make a written offer or proposal to revise the terms of this Agreement in a manner that the Company Board determines in its good faith judgment, after having received the advice of a financial advisor of internationally recognized reputation and outside legal counsel, to be at least as favorable to the Company’s stockholders as such Superior Proposal; provided, however, that during the Notice Period the Company shall negotiate in good faith with Parent (to the extent Parent desires to negotiate) to make such revisions to the terms of this Agreement; provided, further, that any amendment to the terms of such Superior Proposal during the Notice Period shall require a new written notice of the terms of such amended Superior Proposal from the Company and an additional Notice Period that satisfies this Section 6.4(c)(2); and
(3) in the event of a termination of this Agreement pursuant to the foregoing clause (B), the Company pays the Company Termination Fee pursuant to Section 8.4(a) to Parent prior to or concurrently with such termination.
(d) Notwithstanding the foregoing, at any time prior to the Acceptance Time, in response to an Intervening Event, the Company Board may make a Company Adverse Recommendation Change if the Company Board determines in its good faith judgment (after having received the advice of a financial advisor of internationally recognized reputation and outside legal counsel) that, in light of such Intervening Event, the failure of the Company Board to make a Company Adverse Recommendation Change would be inconsistent with the fiduciary duties of the members of the Company Board to the Company and its stockholders under applicable Law; provided, that the Company shall not be entitled to exercise its right to make a Company Adverse Recommendation Change pursuant to this Section 6.4(d) unless:
(i) the Company has provided written notice to Parent (a “Notice of Intervening Event”) advising Parent that an Intervening Event has occurred, describing the applicable material fact, event, change, development or set of circumstances giving rise to the Intervening Event, indicating that the Company Board intends to make a Company Adverse Recommendation Change and the manner in which it intends (or may intend) to do so and including written evidence of the determination of the Company Board that the applicable material fact, event, change, development or set of circumstances constitutes an Intervening Event; and
(ii) Parent does not, within three (3) Business Days of receipt of the Notice of Intervening Event, make an offer or proposal to revise the terms of this Agreement, including an increase in, or modification of, the Offer Price, in a manner that the Company Board determines in its good faith judgment, after having received the advice of a financial advisor of internationally recognized reputation and outside legal counsel, is on such terms and conditions that the failure of the Company Board to make a Company Adverse Recommendation Change would no longer be inconsistent with the Company Board’s fiduciary duties to the Company and its stockholders under applicable Law.
(e) The Company shall promptly (and in any event within one (1) Business Day after the Company attains knowledge thereof) advise Parent in writing of receipt by the Company, any Company Subsidiary or any Company Representative of any proposal, inquiry, offer or request (or any amendment thereto) relating to, that constitutes, or may reasonably be expected to lead to, a Takeover Proposal, including any request for discussions or negotiations and, any request for information relating to the Company or any Company Subsidiary or for access to the business, properties, assets, books or records of the Company or any Company Subsidiary. Such notice shall indicate the identity of the Person making such proposal, inquiry, offer or request and a description of such proposal, inquiry, offer or request, including the material terms and conditions (if any) of such proposed Takeover Proposal, and the Company shall promptly (and in any event within one (1) Business Day after receipt by the Company) provide to Parent copies of any written materials received by the Company in connection with any of the foregoing. The Company agrees that it shall keep IHK informed, on a current basis, Parent informed of the general status and terms material details of (including discussions with respect to or amendments or proposed amendments to) (i) any such proposals proposal, inquiry, offer or offers request and (ii) any information requested of or provided by the status of any such discussions or negotiations.
(b) Company pursuant to Section 6.4(b). The Company agrees that it will take shall simultaneously provide to Parent any nonpublic information concerning the necessary steps Company that may be made available pursuant to promptly inform each Section 6.4(b) to any other Person in response to any such proposal, inquiry, offer or request (or any amendment thereto).
(f) Nothing in this Section 6.4 shall prohibit or restrict the Company Subsidiary and each Representative or the Company Board from taking and/or disclosing to the stockholders of the Company a position contemplated by Rule 14d-9 or any Company Subsidiary Rule 14e-2 promulgated under the Exchange Act; provided, however, that in no event shall this Section 6.4(f) affect the obligations of the obligations undertaken Company specified in Section 6.4(c) and Section 6.4(d); provided, further, that neither the Company Board nor any committee thereof shall make a Company Adverse Recommendation Change in connection with such disclosure (it being understood that any “stop, look and listen” communication by or on behalf of the Company pursuant to Rule 14d-9(f) shall not be considered a Company Adverse Recommendation Change). Any Company Adverse Recommendation Change shall not change the approval of the Company Board for purposes of causing any state takeover statute or other state Law to be inapplicable to the transactions contemplated by this Section 6.05Agreement.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Quest Diagnostics Inc), Merger Agreement (Celera CORP)
No Solicitation of Transactions. (a) The Company agrees that neither it nor no Group Company and none of the directors or officers of any Group Company Subsidiary shall, and that it shall cause direct its and each Company Subsidiary's its Subsidiaries’ Representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Group Company), not to, in each case, directly or indirectly, initiate, (i) solicit, initiate or knowingly encourage or otherwise facilitate (including by way of furnishing information) information in a manner designed to encourage), or take any other action to facilitate, any inquiries or the making of any proposalAcquisition Proposal (including, without limitation, any proposal or offer to its shareholders) that constitutes, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could would reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not lead to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any enter into, maintain or continue discussions or negotiations with, or providing provide any nonpublic information relating to any Group Company or the Transactions to, any Person person or entity in response connection with, or in order to obtain, an unsolicited bona fide written Acquisition Proposal by any such Person; Proposal, or (iii) recommending such an unsolicited bona fide written agree to, approve, adopt, endorse or recommend (or publicly propose to agree to approve, adopt, endorse or recommend) any Acquisition Proposal, or enter into any letter of intent, Contract, commitment or obligation contemplating or otherwise relating to, or consummate, any Acquisition Proposal , or (iv) authorize or permit any of the officers, directors or Representatives of any Group Company to the holders take any action set forth in clauses (a)(i) — (a)(iii) of Company Common Stock if and only this Section 6.04 (in each case, other than to the extent that, expressly permitted pursuant to Section 6.04(b) or Section 6.04(c)). The Company shall notify Parent in writing as promptly as practicable (and in any such case as is referred to in clause event within forty-eight (ii48) or (iiihours after the Company has knowledge thereof), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) any proposal or offer, or any request for information or other inquiry or request, that such Acquisition Proposal is could reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the be expected to lead to an Acquisition Proposal, specifying (x) the material terms and wouldconditions thereof (including material amendments or proposed material amendments) and providing, if consummatedapplicable, result in a transaction more favorable to holders copies of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquirieswritten requests, proposals or offers received byoffers, including proposed agreements, (y) the identity of the party making such proposal or offer or inquiry or contact, and (z) whether the Company has determined to provide confidential information to such person. The Company shall keep Parent informed, on a reasonably current basis (and in any event within forty-eight (48) hours of the occurrence of any material changes, developments, discussions or negotiations) of the status and terms of any such information requested fromproposal, offer, inquiry, contact or request and of any material changes in the status and terms of any such discussions proposal, offer, inquiry, contact or negotiations sought to be initiated or continued with, request (including the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the material terms and conditions thereof) and providing, if applicable, copies of any written requests, proposals or offers, including proposed agreements. The Company agrees that it will immediately shall cease and cause to be terminated any all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any an Acquisition Proposal. The Company agrees that it shall keep IHK informednot, on a current basisand shall cause its Subsidiaries not to, of enter into any confidentiality agreement with any Third Party which prohibits the status and terms of Company from providing such information to Parent, or release any such proposals Third Party from, or offers and the status of waive any such discussions provision of, any confidentiality or negotiationsstandstill agreement in connection with an Acquisition Proposal.
(b) The Subject to compliance with the other provisions of this Section 6.04, prior to obtaining the Requisite Company agrees Vote, the Company Board may directly or indirectly through the Company’s Representatives (i) contact any Third Party that has made an unsolicited, written, bona fide proposal or offer regarding an Acquisition Proposal that was not initiated or solicited in breach of Section 6.04(a) solely in order to clarify the terms and conditions thereof so as to assess whether such proposal or offer constitutes or is reasonably expected to result in a Superior Proposal, and (ii) furnish information to, and enter into discussions with, such Third Party to the extent the Special Committee has (A) determined in good faith (after consultation with a financial advisor who shall be an internationally recognized investment banking firm and outside legal counsel, as applicable) that such proposal or offer constitutes or is reasonably likely to result in a Superior Proposal, and that, in light of such Superior Proposal, failure to furnish such information to or enter into discussions with such Third Party would be reasonably likely to violate the directors’ fiduciary duties under applicable Law, and (B) obtained from such person an executed confidentiality agreement on terms no less favorable to the Company in the aggregate than those contained in the Confidentiality Agreement (it will take being understood that such confidentiality agreement and any related agreements shall not include any provision for any exclusive right to negotiate with such party or having the necessary steps effect of prohibiting the Company from satisfying its obligations under this Agreement); provided that the Company shall provide written notice to promptly inform each Parent at least one (1) Business Day prior to taking any action set forth in clauses (b)(i) of this Section 6.04, provide written notice to Parent at least forty-eight (48) hours prior to taking any action set forth in (b)(ii) of this Section 6.04 and shall concurrently make available to Parent any material information concerning any Group Company Subsidiary that is provided to any such person and each Representative that was not previously made available to Parent or its Representatives.
(c) Except as set forth in this Section 6.04(c), neither the Company Board nor any committee thereof shall (i) (A) withhold, withdraw, qualify, amend or modify in a manner adverse to Parent or Merger Sub, or propose (publicly or otherwise) to withhold, withdraw, qualify, amend or modify in a manner adverse to Parent or Merger Sub, the Company Recommendation or (B) if a tender offer or exchange offer that constitutes an Acquisition Proposal is commenced, fail to recommend against acceptance of such tender offer or exchange offer by its shareholders within ten (10) Business Days after commencement (any of such actions described in the foregoing clause (A) or (B), a “Change in the Company Recommendation”) or (C) adopt, approve, endorse or recommend, or propose (publicly or otherwise) to adopt, approve, endorse or recommend any Acquisition Proposal, provided that a “stop, look and listen” communication by the Company Board or the Special Committee pursuant to Rule 14d-9(f) of the Exchange Act, or any substantially similar communication with respect to an Acquisition Proposal, which did not result from any breach of this Section 6.04(c) shall not be deemed to be a Change in the Company Recommendation, nor (ii) cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, Contract, commitment or obligation with respect to any Acquisition Proposal. Notwithstanding the foregoing but subject to compliance by the Company Subsidiary and the Company Board with this Section 6.04, from the date of this Agreement and at any time prior to the receipt of the obligations undertaken Requisite Company Vote, if the Company has received an unsolicited, bona fide written Acquisition Proposal and the Special Committee determines, in its good faith judgment, upon advice by a financial advisor who shall be an internationally recognized investment banking firm and outside legal counsel, that such proposal or offer constitutes a Superior Proposal and failure to make a Change in the Company Recommendation would be reasonably likely to violate the directors’ fiduciary duties under applicable Law, the Company Board may, upon the unanimous recommendation of the Special Committee, effect a Change in the Company Recommendation with respect to such Superior Proposal but only if:
(1) prior to effecting a Change in the Company Recommendation, the Company shall have complied with the requirements of Sections 6.04(a) and 6.04(b) and shall (x) provide at least thirty (30) days’ prior written notice to Parent (the “Notice Period”) advising Parent that the Company Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the person making such Superior Proposal and indicating that the Company Board intends to effect a Change in the Company Recommendation and the manner in which it intends (or may intend) to do so, it being understood that such notice or any amendment or update thereto or the determination to so deliver such notice shall not constitute a Change in the Company Recommendation, (y) negotiate with and cause its financial and legal advisors to negotiate with Parent and its Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal would cease to constitute a Superior Proposal or so that a failure to effect a Change in the Company Recommendation would no longer be reasonably likely to violate the directors’ fiduciary duties under applicable Law, and (z) permit Parent and its Representatives to make a presentation to the Company Board and the Special Committee regarding this Agreement and any proposed modifications or adjustments with respect thereto (to the extent Parent desires to make such presentation) and consider in good faith any modifications or adjustments regarding this Agreement proposed by Parent; provided that any material modifications to such Acquisition Proposal that the Special Committee previously determined to be a Superior Proposal shall be deemed a new Acquisition Proposal and the Company shall be required to again comply with the requirements of this Section 6.056.04(c);
(2) Parent has not exercised its right of first offer under the Investor Documents with respect to such Superior Proposal prior to the end of the Notice Period; and
(3) following the end of the Notice Period (and any renewed period thereof), the Special Committee shall have unanimously determined in good faith (after consultation with a financial advisor who shall be an internationally recognized investment banking firm and outside legal counsel, as applicable) after considering the terms of any modifications or adjustments to this Agreement proposed by Parent, that (x) such Acquisition Proposal continues to constitute a Superior Proposal and (y) with respect to a Change in the Company Recommendation, failure to effect a Change in the Company Recommendation would be reasonably likely to violate the directors’ fiduciary duties under applicable Laws, and shall have communicated its unanimous recommendation to the Company Board to effect a Change in the Company Recommendation with respect to such Superior Proposal.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Alibaba Group Holding LTD), Merger Agreement (Ali YK Investment Holding LTD), Merger Agreement (Youku Tudou Inc.)
No Solicitation of Transactions. (a) Section 5.4.1 The Company agrees that neither that, prior to the Effective Time, it nor shall not, and shall not authorize or permit any Company Subsidiary shall, and that it shall cause its and each or Company Subsidiary's Representatives not toRepresentative, directly or indirectly, initiate, solicit, to take any action to (A) encourage or otherwise facilitate (including by way of furnishing non-public information), solicit, initiate or facilitate any Acquisition Proposal, (B) enter into any agreement with respect to any Acquisition Proposal or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Offer or the Merger or any other transaction contemplated by this Agreement or (C) participate in any way in discussions or negotiations with, or furnish any information to, any person in connection with, or take any other action to facilitate any inquiries or the making of any proposalproposal that constitutes, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not lead to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent if, at any time prior to the consummation of the Offer, the Company or Board determines in good faith, after receiving advice of outside counsel, that it would otherwise constitute a breach of its fiduciary duties to stockholders, the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations withCompany may, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition a Superior Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal and subject to the holders of Company Common Stock if and only Company’s compliance with Section 5.3.2, (1) furnish information with respect to the extent that, in any Company and the Company Subsidiaries to the person making such case as is referred Superior Proposal pursuant to in clause a customary confidentiality agreement (ii) or (iii), (Awhich will include customary standstill provisions) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects benefits of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction terms of which are no more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any other party to such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to than those contained in the Confidentiality Confidential Agreement and (D2) prior participate in discussions with respect to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board such Superior Proposal. Upon execution of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued withthis Agreement, the Company, any Company Subsidiary or any of its affiliates and their Representatives indicatingrespective officers, in connection with such noticedirectors, the name of such Person employees, representatives legal counsel, advisors and the terms and conditions of any proposals or offers. The Company agrees that it will agents shall cease immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to an Acquisition Proposal and promptly request that all confidential information with respect thereto furnished on behalf of the Company be returned.
Section 5.4.2 The Company shall immediately advise Parent of any inquiry received by it relating to any potential Acquisition Proposal and of the terms of any proposal or inquiry, including the identity of the person and its affiliates making the same, that it may receive in respect of any such potential Acquisition Proposal. The , or of any information requested from it (including copies of any such information actually provided) or of any negotiations or discussions being sought to be initiated with it, shall furnish to the Purchaser a copy of any such proposal or inquiry, if it is in writing, or a written summary of any such proposal or inquiry (as well as of any additional information received by the Company agrees that with respect to an Acquisition Proposal), if it is not in writing, and shall keep IHK informed, Parent fully informed on a current basis, of the status and terms of any such proposals or offers and basis with respect to the status of any such negotiations or discussions or negotiationsand any developments with respect to the foregoing.
Section 5.4.3 Neither the Company Board nor any committee thereof shall (bA) The withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent, the approval or recommendation by the Company agrees that it will take Board or such committee of the necessary steps Offer and the Merger and the adoption and approval of this Agreement, (B) approve or recommend, or propose publicly to promptly inform each approve or recommend, any Acquisition Proposal other than the Offer and the Merger or (C) cause the Company Subsidiary to enter into any letter of intent, agreement in principle, acquisition agreement or other agreement related to any Acquisition Proposal other than the Offer and each Representative of the Merger. Nothing contained in this Section 5.4.3 shall prohibit the Company or any the Company Subsidiary Board (1) from taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act with regard to an Acquisition Proposal (provided that the Company Board shall not withdraw or modify in an adverse manner its approval or recommendation of the obligations undertaken Offer, the Merger or this Agreement except as set forth below) or (2) in the event that a Superior Proposal is made and the Company Board determines in good faith, after receiving advice of outside counsel, that it would otherwise constitute a breach of its fiduciary duty to stockholders, from withdrawing or modifying its recommendation of the Offer and the Merger prior to consummation of the Offer and no earlier than two (2) business days following the day of delivery of written notice to Parent of its intention to do so, so long as the Company continues to comply with all other provisions of this Section 6.05Agreement.
Appears in 3 contracts
Sources: Merger Agreement (Xyratex LTD), Merger Agreement (Nstor Technologies Inc), Merger Agreement (Xyratex LTD)
No Solicitation of Transactions. (a) The Section 5.6.1 None of the Company agrees that neither it nor or any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, initiatetake (and the Company shall not authorize or permit the Company Representatives or, solicitto the extent within the Company’s control, other affiliates to take) any action to (A) encourage or otherwise facilitate (including by way of furnishing non-public information), solicit, initiate or facilitate any Acquisition Proposal, (B) enter into any agreement with respect to any Acquisition Proposal or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement or (C) participate in any way in discussions or negotiations with, or furnish any information to, any person in connection with, or take any other action to facilitate any inquiries or the making of any proposalproposal that constitutes, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not lead to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained if, at any time prior to the obtaining of the Company’s stockholders’ approval of the Merger, the Receiver determines in this Agreement shall prevent good faith, after consultation with outside counsel, that it would otherwise constitute a breach of the Receiver’s fiduciary duties to stockholders, the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations withmay, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition a Superior Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal and subject to the holders of Company Common Stock if Company’s compliance with Section 5.4 and only Section 5.6.2, (x) furnish information with respect to the extent that, in any Company and the Company Subsidiaries to the person making such case as is referred Superior Proposal pursuant to in clause (ii) or (iii), (A) a customary confidentiality agreement the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects benefits of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction terms of which are no more favorable to holders of Company Common Stock the other party to such confidentiality agreement than the transaction contemplated by this Agreement those in place with Parent and (any y) participate in discussions with respect to such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board . Upon execution of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Personthis Agreement, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will shall cease immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to an Acquisition Proposal and promptly request that all confidential information with respect thereto furnished on behalf of the Company be returned.
Section 5.6.2 The Company shall, as promptly as practicable (and in no event later than 24 hours after receipt thereof), advise Parent of any inquiry received by it relating to any potential Acquisition Proposal and of the material terms of any proposal or inquiry, including the identity of the person and its affiliates making the same, that it may receive in respect of any such potential Acquisition Proposal, or of any information requested from it or of any negotiations or discussions being sought to be initiated with it, shall furnish to Merger Sub a copy of any such proposal or inquiry, if it is in writing, or a written summary of any such proposal or inquiry, if it is not in writing and shall keep Parent fully informed on a prompt basis with respect to any developments with respect to the foregoing.
Section 5.6.3 The Receiver shall not (A) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent, the approval or recommendation by the Receiver of the adoption and approval of the Merger (the “Company Recommendation”) and the matters to be considered at the Company Stockholders’ Meeting, (B) other than the Merger, approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal, or (C) other than the Merger, cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiations.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken Nothing contained in this Section 6.055.6.3 shall prohibit the Company (x) from taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act or (y) in the event that a Superior Proposal is made and the Receiver determines in good faith, after consultation with outside counsel, that it would otherwise constitute a breach of its fiduciary duty to stockholders, from withdrawing or modifying its recommendation of the Merger no earlier than five business days following the day of delivery of written notice to Parent of its intention to do so, so long as the Company continues to comply with all other provisions of this Agreement including, without limitation, Section 5.4 hereof.
Section 5.6.4 Upon execution of this Agreement, paragraph 1 of the Exclusivity Agreement shall terminate and be of no further force and effect.
Appears in 3 contracts
Sources: Merger Agreement (Arthrocare Corp), Merger Agreement (Arthrocare Corp), Merger Agreement (Medical Device Alliance Inc)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary shallEach of Veeco and Axcelis shall immediately cease, and that it shall cause its respective Subsidiaries and Representatives to immediately cease, any discussions or negotiations with any Person that may be ongoing with respect to a Competing Proposal (including any provision of non-public information regarding Veeco and its Subsidiaries or Axcelis and its Subsidiaries, as applicable), or with respect to any proposal that could reasonably be expected to lead to a Competing Proposal, and shall request to have returned promptly (and, in any event, within two (2) Business Days of the date hereof) to Veeco or Axcelis, as applicable, or to have promptly destroyed, any confidential information that has been provided in any such discussions or negotiations. From the date hereof until the earlier of the Effective Time or the date of valid termination of this Agreement in accordance with Article 7, each Company Subsidiary's of Veeco and Axcelis shall not, and shall cause its respective Subsidiaries and Representatives not to, directly or indirectly, initiate, (i) solicit, initiate or knowingly encourage or otherwise facilitate knowingly induce (including by way of furnishing information) ), or take any other action intentionally designed to facilitate, any inquiries or the making of any proposalproposal which constitutes, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could would reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not lead to, directly any Competing Proposal, or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or (ii) engage in any discussions or negotiations concerning an Acquisition Proposal, or otherwise facilitate regarding any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Competing Proposal; provided, however, that nothing contained if, prior to obtaining the Veeco Stockholder Approval (in this Agreement shall prevent the Company case of Veeco) or the Company's Board Axcelis Stockholder Approval (in the case of Directors from (iAxcelis) complying with Rule 14e-2 promulgated under and following the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited receipt of a bona fide written Acquisition Competing Proposal by any such Person; made after the date hereof that the Veeco Board or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent thatAxcelis Board, in any such case as is referred to in clause (ii) or (iii)applicable, (A) the Company's Board of Directors concludes determines in good faith (after consultation with its Veeco’s or Axcelis’s financial advisor and outside legal counsel and financial advisorscounsel) that such Acquisition Proposal is would reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition be expected to lead to a Superior Proposal and that was not, directly or indirectly, solicited, initiated or knowingly encouraged in violation of this Section 5.4, the Veeco Board or the Axcelis Board, as applicable, determines in good faith, after consultation with financial advisors and outside legal counsel, as applicable, that a failure to take action with respect to such Competing Proposal would be inconsistent with its fiduciary duties under applicable Law, Veeco or Axcelis may, in response to such Competing Proposal, as applicable, and subject to compliance with Section 5.4(c), (A) furnish information with respect to Veeco or Axcelis, as applicable, to the Person making the Acquisition Proposalsuch Competing Proposal pursuant to an Acceptable Confidentiality Agreement, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) engage in discussions or negotiations with such Person (and such Person’s Representatives and financing sources (if any)) regarding such Competing Proposal. Except as expressly permitted by this Section 5.4, each of Axcelis and Veeco shall not, and shall cause their respective Subsidiaries and Representatives not to, from and after the Company's date of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Article 7, directly or indirectly (1) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar definitive agreement (other than an Acceptable Confidentiality Agreement) with respect to any Competing Proposal; (2) take any action to make the provisions of any takeover statute inapplicable to any transactions contemplated by a Competing Proposal; (3) terminate, amend, release, modify or knowingly fail to enforce any provision of, or grant any permission, waiver or request under, any standstill, confidentiality or similar agreement entered into by the applicable party in respect of or in contemplation of a Competing Proposal (other than to the extent the Axcelis Board of Directors or the Veeco Board, as applicable, determines in good faith after consultation with outside legal counsel counsel, that failure to take any of such action is necessary for it to act in a manner consistent actions under clause (3) would be inconsistent with its fiduciary duties under applicable law, Law); or (C4) prior propose to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or do any of their Representatives indicatingthe foregoing. For the avoidance of doubt, nothing in connection with such notice, the name of such Person and the terms and conditions of this Section 5.4(a) shall relieve any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiationsparty from its obligations under Section 5.6.
(b) The Company agrees that it will take the necessary steps Notwithstanding any other provision of this Agreement, including Section 5.3 but subject to promptly inform each Company Subsidiary and each Representative compliance with this Section 5.4, prior to receipt of the Company or any Company Subsidiary Veeco Stockholder Approval, the Veeco Board may, or, prior to receipt of the Axcelis Stockholder Approval, the Axcelis Board may, in response to any bona fide written Competing Proposal that was not, directly or indirectly, solicited, initiated or knowingly encouraged in violation of this Section 5.4, effect a Veeco Adverse Recommendation Change or an Axcelis Adverse Recommendation Change, as applicable, if and only if (i) the Veeco Board or the Axcelis Board, as applicable, concludes in good faith, after consultation with Veeco’s or Axcelis’s financial advisor and outside legal counsel, that such Competing Proposal constitutes a Superior Proposal; (ii) the Axcelis Board or the Veeco Board, as applicable, provides the other party five (5) Business Days prior written notice of its intention to take such action (a “Competing Proposal Notice”), which notice shall include the information with respect to such Competing Proposal that is specified in Section 5.4(c), as well as a copy of such Competing Proposal (and if available, drafts of any Contract to effectuate such Competing Proposal) (it being agreed that neither the delivery of such notice by a party nor any public announcement thereof that such party determines it is required to make under applicable Law shall constitute a Veeco Adverse Recommendation Change or an Axcelis Adverse Recommendation Change, as applicable, unless and until such party shall have failed at or prior to the end of the period referred to in clause (iii) below (and, upon the occurrence of such failure, such notice and such public announcement shall constitute a Veeco Adverse Recommendation Change or an Axcelis Adverse Recommendation Change, as applicable) to determine (in the case where such Competing Proposal was not public) or to publicly announce (in the case where such Competing Proposal was public) that (A) it is recommending the Transactions and (B) such other Competing Proposal (taking into account (x) any modifications or adjustments made to the Transactions agreed to by the other party in writing and (y) any modifications or adjustments made to such other Competing Proposal) is not a Superior Proposal); (iii) during the five (5) Business Days following such written notice (the “Negotiation Period”), if requested by the other party, the Board of Directors effecting the recommendation change and its Representatives have negotiated in good faith with the other party regarding any revisions to the terms of the Transactions proposed by the other party in response to such Competing Proposal; and (iv) at the end of the five (5) Business Day period described in the foregoing clause (iii), the Veeco Board or Axcelis Board, as applicable, concludes in good faith, after consultation with Veeco’s or Axcelis’s outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement to which the other party has agreed in writing to make to the terms of the Transactions), that the Competing Proposal continues to be a Superior Proposal and, after consultation with Veeco’s or Axcelis’s outside legal counsel, that the failure to make a Veeco Adverse Recommendation Change or Axcelis Adverse Recommendation Change, as applicable, would be inconsistent with the fiduciary duties of the Veeco Board or Axcelis Board under applicable Law. Any material amendment or modification to any Competing Proposal shall require a new Competing Proposal Notice and the Negotiation Period shall be extended by an additional four (4) Business Days from the date of receipt of such new Competing Proposal Notice.
(c) In addition to the obligations undertaken of Axcelis and Veeco set forth in Section 5.4(a) and Section 5.4(b), Axcelis or Veeco shall promptly, and in any event no later than twenty-four (24) hours, after it receives (i) any Competing Proposal or indication by any Person that such Person is considering making a Competing Proposal, (ii) any request for non-public information relating to Axcelis or Veeco or their respective Subsidiaries, other than requests for information that would not reasonably be expected to result in a Competing Proposal, or (iii) any inquiry or request for discussions or negotiations regarding any Competing Proposal, notify the other party orally and in writing of any of the foregoing occurrences, the identity of the person making such request, inquiry or Competing Proposal and a copy of such request, inquiry or Competing Proposal (or where no such copy is available, a reasonably detailed description of such request, inquiry or Competing Proposal). Each party shall keep the other party reasonably informed (orally and in writing) on a current basis (and in any event at the other party’s request and otherwise no later than twenty-four (24) hours after the occurrence of any material changes, developments, discussions or negotiations) of the status of any request, inquiry or Competing Proposal (including the terms and conditions thereof and of any modification thereto), and any material developments, discussions and negotiations, including furnishing copies of any written inquiries, material correspondence and draft documentation, and written summaries of any material oral inquiries or discussions. Without limiting the foregoing, each party shall promptly (and in any event within twenty-four (24) hours) notify the other party orally and in writing if it determines to begin providing information or to engage in discussions or negotiations concerning a Competing Proposal pursuant to this Section 5.4. Each of Axcelis and Veeco agrees that, subject to applicable restrictions under applicable Law, it shall, prior to or concurrent with the time it is provided to any third parties, provide to the other party any non-public information concerning Axcelis or Veeco and their respective Subsidiaries that Axcelis or Veeco provided to any third party in connection with any Competing Proposal which was not previously provided to the other party.
(d) Notwithstanding anything in this Section 6.055.4 to the contrary, at any time prior to obtaining the Axcelis Stockholder Approval or the Veeco Stockholder Approval, the Axcelis Board or the Veeco Board, as applicable, may make an Axcelis Adverse Recommendation Change or a Veeco Adverse Recommendation Change, as applicable, if (i) such board determines that an Axcelis Intervening Event, in the case of the Axcelis Board, or a Veeco Intervening Event, in the case of the Veeco Board, has occurred and is continuing and (ii) such board determines in good faith (after consultation with outside legal counsel) that the failure to make an Axcelis Adverse Recommendation Change or a Veeco Adverse Recommendation Change, as applicable, in response to such Axcelis Intervening Event or Veeco Intervening Event, as applicable, would be inconsistent with its fiduciary duties under applicable Law; provided that (x) the Axcelis Board or the Veeco Board has given the other party at least five (5) Business Days prior written notice of its intention to take such action and specifying in reasonable detail the circumstances related to such determination and (y) prior to effecting an Axcelis Adverse Recommendation Change or a Veeco Adverse Recommendation Change, the applicable party has negotiated, and has caused its Representatives to negotiate, in good faith with the other party during such notice period to the extent such other party wishes to negotiate, to enable such party to revise the terms of this Agreement, such that the failure to make an Axcelis Adverse Recommendation Change or a Veeco Adverse Recommendation Change, as applicable, would not be inconsistent with its fiduciary duties under applicable Law.
(e) Nothing contained in this Agreement shall prohibit the Axcelis Board or the Veeco Board from (i) taking and disclosing to their stockholders, as applicable, a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act regarding a Competing Proposal, or from issuing a “stop, look and listen” statement pending disclosure of its position thereunder, or (ii) making any disclosure to their stockholders regarding a Competing Proposal if the Veeco Board or Axcelis Board, as applicable, determines in good faith, after consultation with outside legal counsel, that the failure to make such disclosure would be inconsistent with its fiduciary duties under applicable Law, provided, that if any such disclosure pursuant to this clause (ii) has the substantive effect of withdrawing or adversely modifying the Axcelis Recommendation or the Veeco Recommendation, such disclosure shall be deemed to be an Axcelis Adverse Recommendation Change or a Veeco Adverse Recommendation Change, as applicable, for purposes of this Agreement (it being understood that any “stop, look or listen” communication that substantially contains only the information set forth in Rule 14d-9(f) shall not be deemed, in and of itself, to be an Axcelis Adverse Recommendation Change or a Veeco Adverse Recommendation Change).
(f) Notwithstanding any Axcelis Adverse Recommendation Change, Veeco Adverse Recommendation Change, as applicable, or any other provision of this Agreement to the contrary, unless this Agreement has been validly terminated pursuant to Section 7.1, (i) Axcelis shall cause the proposal to approve the issuance of Axcelis Common Stock in the Merger pursuant to this Agreement (the “Axcelis Share Issuance”) to be submitted to a vote of the Axcelis stockholders at the Axcelis Stockholder Meeting and (ii) Veeco shall cause the proposal to approve the Merger and the Transactions to be submitted to a vote of Veeco stockholders at the Veeco Stockholder Meeting.
(g) For purposes of this Agreement:
Appears in 3 contracts
Sources: Merger Agreement (Veeco Instruments Inc), Merger Agreement (Axcelis Technologies Inc), Merger Agreement (Veeco Instruments Inc)
No Solicitation of Transactions. The Company, its affiliates and their respective officers, directors, employees, representatives and agents shall immediately cease any existing discussions or negotiations, if any, with any parties conducted heretofore with respect to any Third Party Acquisition (a) as defined in Section 8.3). The Company agrees that neither it nor any Company Subsidiary shallCompany, its subsidiaries and that it shall cause its affiliates and each Company Subsidiary's Representatives not totheir respective officers, directors, employees, representatives and agents may, directly or indirectly, initiate, solicit, encourage furnish information and access to any Third Party (as defined in Section 8.3) (in each case only in response to a request for such information or otherwise facilitate (including by way of furnishing information) any inquiries or access made after the making of any proposal, or offer date hereof and with respect to confidential information, only pursuant to an appropriate confidentiality agreement) only if, and may participate in discussions and negotiate with such Third Party concerning any Third Party Acquisition, only if
(i) such Third Party has submitted a mergerbona fide proposal to the Board relating to any such transaction, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion and
(ii) a majority of the assets or 20% or more Board of Directors of the equity securities of, the Company or any Company Subsidiary thatdetermines, in any its good faith judgment after receiving advice from its outside counsel, that failing to take such case, action could reasonably be expected to interfere with the completion be a breach of the directors' fiduciary duties under applicable law. The Company shall promptly notify Parent, if any proposal or offer, or any inquiry or contact with any person with respect thereto, is made and shall, in any such notice to Parent, indicate in reasonable detail the identity of the offeror and the terms and conditions of any proposal or offer, or any such inquiry or contact. The Company shall keep Parent promptly advised of all developments which could reasonably be expected to culminate in the Board of Directors withdrawing, modifying or amending its recommendation of the Offer, the Merger or and the other transactions contemplated by this Agreement (Agreement, unless with respect to a specific development the Board of Directors of the Company by a majority vote determines in its good faith judgment, after receiving advice from outside counsel, that notifying Parent of such development could reasonably be expected to be a breach of the Board's fiduciary duties under applicable law. Except as set forth in this Section 6.1, neither the Company or any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it of its affiliates, nor any Company Subsidiary of its or their respective officers, directors, employees, representatives or agents, shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with knowingly encourage, solicit, participate in or initiate discussions or negotiations with, or provide any confidential information or data to to, any Person relating to an Acquisition Proposal or engage in Third Party concerning any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition ProposalThird Party Acquisition; provided, however, that nothing contained in this Agreement Section 6.1 shall prevent the Company or the Board from taking, and disclosing to the Company's Board of Directors from (i) complying with Rule stockholders, a position contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions tender offer or negotiations with, or providing any information to, any Person in response from making such disclosure to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's stockholders which, in the good faith judgment of its Board of Directors concludes after receiving advice from outside counsel, is required under applicable law; provided further, that the Board shall not recommend that the stockholders of the Company tender their Common Shares in connection with any such tender offer unless the Board by a majority vote determines in its good faith (judgment, after consultation with its legal counsel and financial advisors) receiving advice from outside counsel, that failing to take such Acquisition Proposal is action could reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects be expected to be a breach of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the CompanyBoard's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiations.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken in this Section 6.05.
Appears in 3 contracts
Sources: Merger Agreement (Trident International Inc), Merger Agreement (Trident International Inc), Merger Agreement (Illinois Tool Works Inc)
No Solicitation of Transactions. (a) The Company agrees that neither (i) it nor any Company Subsidiary shalland its directors and officers shall not, (ii) its Subsidiaries and that its Subsidiaries’ directors and officers shall not and (iii) it shall cause use reasonable best efforts to ensure that its and each Company Subsidiary's its Subsidiaries’ other Representatives not toshall not, directly or indirectly, initiate, (A) solicit, initiate or knowingly encourage or otherwise facilitate (including by way of furnishing information) any inquiries regarding or the making of any proposalproposal that constitutes or is reasonably likely to lead to a Takeover Proposal, (B) enter into, continue or otherwise participate in any discussions or negotiations regarding, or offer furnish to any Person any confidential information with respect to, any Takeover Proposal, (C) enter into any agreement or agreement in principle requiring, directly or indirectly, the Company to abandon, terminate or fail to consummate the transactions contemplated hereby, or (D) publicly propose or agree to do any of the foregoing. The Company shall, and shall cause its Subsidiaries and direct its Representatives to, immediately cease and cause to be terminated all existing discussions and negotiations with any Person conducted prior to the date of this Agreement with respect to a mergerany Takeover Proposal. Notwithstanding the foregoing or anything else in this Agreement to the contrary, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or at any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, time prior to obtaining the Company or any Company Subsidiary thatRequired Vote, in any response to a bona fide written Takeover Proposal received after the date hereof that did not result from a material breach of this Section 6.06, if the Company Board of Directors determines after consultation with its financial advisors and outside counsel, that such case, Takeover Proposal constitutes or could reasonably be expected to interfere lead to a Superior Proposal, the Company may (and may authorize and permit its Subsidiaries and Representatives to), subject to compliance with Section 6.06(c), (1) furnish information with respect to the Company and its Subsidiaries to the Person making such Takeover Proposal (and its Representatives) pursuant to a confidentiality agreement containing provisions (including standstill provisions) not less restrictive with respect to the Person making such Takeover Proposal than those set forth in the Confidentiality Agreement are to CF Corp, provided that all such information has previously been provided to CF Corp or is provided to CF Corp prior to or substantially concurrently with the completion of the Merger or the other transactions contemplated by this Agreement (any time it is provided to such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shallPerson, and that it shall cause (2) participate in discussions and negotiations with the Person making such Takeover Proposal (and its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Representatives) regarding such Takeover Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent thatthat in connection with the foregoing clauses (1) and (2) the Company Board of Directors determines in good faith, after consultation with its financial advisors and outside counsel, that the failure to do so would be inconsistent with its fiduciary duties under Delaware Law.
(b) Neither the Company Board of Directors nor any committee thereof shall (i)(A) withdraw (or modify in a manner adverse to CF Corp), or publicly propose to withdraw or withhold (or modify in a manner adverse to CF Corp), the approval, recommendation or declaration of advisability by the Company Board of Directors or any such committee of this Agreement or the Merger or (B) recommend or endorse the approval or adoption of, or approve or adopt, or publicly propose to recommend, endorse, approve or adopt, any Takeover Proposal (any action described in this clause (i) being referred to as an “Adverse Recommendation Change”; it being understood that any “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) of the Exchange Act shall not be deemed to be an Adverse Recommendation Change) or (ii) approve or recommend, or publicly propose to approve or recommend, or cause or permit the Company or any of its Subsidiaries to execute or enter into, any Takeover Proposal Documentation. Notwithstanding the foregoing or anything else in this Agreement to the contrary, at any time prior to obtaining the Company Required Vote, the Company Board of Directors may, if, after consultation with its financial advisors and outside counsel, it determines that the failure to take such action would be inconsistent with its fiduciary duties under Delaware Law, (1) make an Adverse Recommendation Change or (2) cause or permit the Company to terminate this Agreement in order to enter into an agreement regarding a Superior Proposal if and only if (I) the Company has complied in all material respects with this Section 6.06 and shall have given CF Corp written notice at least four (4) Business Days prior to taking such action (a “Notice of Superior Proposal”), that the Company Board of Directors intends to take such action in response to a Superior Proposal and specifying the reasons therefor, including the most current version of any proposed agreement or, if there is no such proposed written agreement, a reasonably detailed summary of the material terms and conditions of any such Superior Proposal and the identity of the Person making such Superior Proposal and (II) during such four (4) Business Day period, if requested by CF Corp, the Company and its Representatives shall engage in good faith negotiations with CF Corp and its Representatives to amend this Agreement in such a manner that any Takeover Proposal which was determined to constitute a Superior Proposal no longer is a Superior Proposal taking into account any changes to the financial terms and other material terms of this Agreement proposed by CF Corp in writing to the Company following the Notice of Superior Proposal (it being understood and agreed that any amendment to the financial terms or other material terms of such Superior Proposal shall require a new Notice of Superior Proposal and the Company shall be required to comply again with this Section 6.06(b), except that reference to the four (4) Business Day period shall be deemed a reference to a new two (2) Business Day period).
(c) In addition to the obligations of the Company set forth in Section 6.06(a) and Section 6.06(b), the Company shall as promptly as practicable advise CF Corp of the receipt of any Takeover Proposal after the date of this Agreement, the material terms and conditions of any such Takeover Proposal and the identity of the Person making any such Takeover Proposal. The Company shall, subject to the fiduciary duties of the Company Board of Directors under applicable Law, keep CF Corp reasonably informed of any material developments with respect to any such Takeover Proposal (including any material changes thereto).
(d) Prior to obtaining the Company Required Vote, the Company Board of Directors may make an Adverse Recommendation Change in response to a Change in Circumstance, if and only if (i) the Company Board of Directors determines in good faith, after consultation with the Company’s outside counsel, that the failure to do so would be inconsistent with its fiduciary duties under applicable Law, (ii) the Company shall have given CF Corp written notice at least four (4) Business Days prior to making any such Adverse Recommendation Change, (iii) during such four (4) Business Day period, if requested by CF Corp, the Company and its Representatives shall engage in good faith negotiations with CF Corp and its Representatives to amend this Agreement and (iv) after considering any proposed revisions to this Agreement made by CF Corp in writing during such four (4) Business Day period, if any, after consultation with its outside counsel, the Company Board of Directors shall have determined, in good faith, that the failure to make the Adverse Recommendation Change in response to such Change in Circumstance would be inconsistent with its fiduciary duties under applicable Law.
(e) Nothing contained in this Section 6.06 or elsewhere in this Agreement shall prohibit the Company from (i) taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act or (ii) making any such case as is disclosure to its stockholders if the Company Board of Directors determines (after consultation with its outside counsel) that failure to do so would be inconsistent with its obligations under applicable Law, it being understood, however, that this clause (ii) shall not be deemed to permit the Company Board of Directors to make an Adverse Recommendation Change or take any of the actions referred to in clause (ii) or (iii), (Aof Section 6.06(b) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicatingexcept, in connection with such noticeeach case, to the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiationsextent permitted by Section 6.06(b).
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken in this Section 6.05.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (CF Corp), Merger Agreement (Fidelity & Guaranty Life)
No Solicitation of Transactions. (a) The Section 6.4.1. Subject to the other provisions of this Section 6.4, the Company agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not Subsidiary to, directly immediately cease and cause to be suspended any discussions or indirectlynegotiations with any parties (other than Parent, initiate, solicit, encourage or otherwise facilitate (including by way of furnishing informationMerger Sub and the Parent Representatives) any inquiries or the making of any proposal, or offer that may be ongoing with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Takeover Proposal"). The Company further agrees that neither it nor any shall not, and shall cause each Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, (i) directly or indirectlyindirectly (through any Person) solicit, have initiate, or knowingly encourage any discussion Takeover Proposal, (ii) enter into any agreement or agreement in principle with respect to a Takeover Proposal, or provide (iii) participate in any way in any negotiations or discussions regarding, or furnish or disclose to any Third Party any confidential information or data to with respect to, any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Takeover Proposal; provided, however, that nothing at any time prior to obtaining the Stockholder Approval and notwithstanding any provision of this Agreement to the contrary (including this Section 6.4), in response to a bona fide written Takeover Proposal that was received but not solicited by the Company, a Company Subsidiary, or a Company Representative on its behalf, after the date hereof that the Company Board determines in good faith constitutes, or could reasonably be expected to lead to, a Superior Proposal, the Company may furnish information and/or draft agreements with respect to the Company and the Company Subsidiaries to, and enter into negotiations or discussions with, the Person making such Takeover Proposal (and its officers, directors, partners, employees, accountants, consultants, legal counsel, advisors, agents and other representatives) pursuant to a customary confidentiality agreement not less favorable in any material respect to the Company than the Confidentiality Agreement (exclusive of any standstill provisions contained therein). Parent and Merger Sub agree and acknowledge that, with respect to any agreement between the Company and any Third Party that contains a provision prohibiting such Third Party from making a Takeover Proposal without first obtaining from the Company Board a waiver of such provision or consent to such Takeover Proposal, any such waiver or consent on the part of the Company Board may be given by the Company Board and, if given, shall not be considered a solicitation of a Takeover Proposal in violation of this Section 6.4.
Section 6.4.2. Notwithstanding any provision of this Section 6.4 to the contrary, the Company Board may (i) withdraw or modify in a manner adverse to Parent (or not continue to make) the Company Recommendation, (ii) approve or recommend a Superior Proposal (any action described in clause (i) or this clause (ii), a “Company Adverse Recommendation Change”), and/or (iii) subject to Section 6.4.3, enter into an agreement regarding a Superior Proposal, if (x) in the case of clause (i), (ii) or (iii) above, the Company Board has determined in good faith that the failure to take such action would be inconsistent with its fiduciary duties to the holders of shares of Company Common Stock under applicable Law and (y) in the case of clause (iii) above, the Company shall have terminated this Agreement in accordance with the provisions of Section 8.1(c)(iii) hereof.
Section 6.4.3. The Company shall promptly (and in any event within forty-eight (48) hours) advise Parent orally and in writing of the Company’s receipt of any Takeover Proposal or any request for information in connection with a possible Takeover Proposal and the material terms and conditions of such Takeover Proposal or request, but not the identity of the Person making such Takeover Proposal. In addition, the Company shall not accept or enter into any agreement, letter of intent or similar document (other than a confidentiality agreement as contemplated by Section 6.4.1) concerning a Takeover Proposal for a period of not less than three (3) Business Days after Parent’s receipt of notice concerning a Takeover Proposal, and during such three (3) Business Day period, at Parent’s request, the Company shall negotiate with Parent in good faith. If, prior to the conclusion of such three (3) Business Day period, Parent and Merger Sub shall execute and deliver a Top-Up Amendment to the Company, then the Company shall cease all discussions or negotiations with respect to the Takeover Proposal unless and until a subsequent Superior Proposal is made.
Section 6.4.4. Nothing contained in this Agreement shall prevent prohibit the Company or the Company's Company Board of Directors from (i) complying with taking and disclosing to the stockholders of the Company a position contemplated by Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; or (ii) engaging in making any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal disclosure to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiations.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative stockholders of the Company or any Company Subsidiary if, in the good faith judgment of the obligations undertaken in this Section 6.05Company Board, such disclosure would be necessary under applicable Law (including Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act).
Appears in 2 contracts
Sources: Merger Agreement (Psychiatric Solutions Inc), Merger Agreement (Horizon Health Corp /De/)
No Solicitation of Transactions. (a) The Until the earlier of the Effective Time and termination of this Agreement pursuant to Article VIII, except pursuant to Section 6.04(b), the Company agrees that neither it nor any Company Subsidiary shallof its Subsidiaries will, and that it shall will cause its and each Company Subsidiary's its Subsidiaries’ Representatives (including any investment banker, attorney or accountant retained by any Group Company) not to, in each case, directly or indirectly, (i) solicit, initiate, solicit, encourage or otherwise facilitate (including by way of furnishing information) nonpublic information concerning any Group Company), or take any other action to facilitate, any inquiries or the making of any proposalproposal or offer (including any proposal or offer to its shareholders) that constitutes, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could may reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not lead to, directly or indirectlyany Competing Transaction, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any enter into, maintain or continue discussions or negotiations with, or providing provide any nonpublic information concerning any Group Company to, any Person Third Party in response furtherance of such inquiries or to an unsolicited bona fide written Acquisition Proposal by obtain a proposal or offer for a Competing Transaction or any such Person; proposal or offer that could reasonably be expected to lead to a Competing Transaction, (iii) recommending such an unsolicited bona fide written Acquisition Proposal agree to, approve, endorse, recommend or consummate any Competing Transaction or enter into any letter of intent or Contract or commitment contemplating or otherwise relating, or that may reasonably be expected to lead to, to any Competing Transaction or requiring the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by abandon this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicatingthe Transactions, in connection with such noticeincluding the Merger, the name of such Person or (iv) grant any waiver, amendment or release under any standstill, confidentiality or similar agreement or Takeover Statutes (and the terms and conditions of any proposals Company shall promptly take all action necessary to terminate or offers. The Company agrees that it will immediately cease and cause to be terminated any such waiver previously granted with respect to any provision of any such confidentiality, standstill or similar agreement or Takeover Statute and to enforce each such confidentiality, standstill and similar agreement). The Company shall notify Parent as promptly as practicable (and in any event within forty-eight (48) hours), orally and in writing, of any proposal or offer, or any inquiry or contact between the Company or its Representatives and any Third Party, regarding a Competing Transaction or that could reasonably be expected to lead to a Competing Transaction, specifying (x) the material terms and conditions thereof (including material amendments or proposed material amendments) and providing, if applicable, copies of any written requests, proposals or offers, including proposed agreements, (y) the identity of the party making such proposal or offer or inquiry or contact, and (z) whether the Company has any intention to provide confidential information to such person. The Company shall keep Parent informed, on a reasonably current basis (and in any event within forty-eight (48) hours of the occurrence of any material changes, developments, discussions or negotiations) of the status and terms of any such proposal, offer, inquiry, contact or request and of any material changes in the status and terms of any such proposal, offer, inquiry, contact or request (including the material terms and conditions thereof). Without limiting the foregoing, the Company shall (A) promptly notify Parent orally and in writing if it determines to initiate actions concerning a proposal, offer, inquiry, contact or request, in each case as permitted by this Section 6.04, and (B) provide Parent with forty-eight (48) hours prior notice (or such lesser prior notice as is provided to the members of the Company Board or members of the Special Committee) of any meeting of the Company Board or Special Committee at which the Company Board or Special Committee, as applicable, is reasonably expected to consider any Competing Transaction. The Company shall, and shall cause its Subsidiaries and the Representatives of the Company and its Subsidiaries to, immediately cease and terminate all existing activities, discussions or negotiations with any parties conducted heretofore with respect to a Competing Transaction and immediately revoke or withdraw access of any Acquisition ProposalThird Party to any data room containing any nonpublic information concerning any Group Company and request, and use its reasonable efforts to cause, all such Third Parties to promptly return or destroy all such nonpublic information. The Company agrees that it shall keep IHK informednot, on a current basisand shall cause its Subsidiaries not to, enter into any confidentiality agreement with any Third Party subsequent to the date of this Agreement which prohibits the status and terms of any Company from providing such proposals or offers and the status of any such discussions or negotiationsinformation to Parent.
(b) The Notwithstanding anything to the contrary in Section 6.04(a), at any time prior to the receipt of the Requisite Company agrees Vote, following the receipt of an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction which was not obtained in violation of Section 6.04, the Company and its Representatives may, with respect to such proposal or offer and acting only under the direction of the Special Committee:
(i) contact the person who has made such proposal or offer solely to clarify and understand the terms and conditions thereof to the extent the Special Committee shall have determined in good faith that such contact is necessary to determine whether such proposal or offer constitutes a Superior Proposal or could reasonably be expected to result in a Superior Proposal;
(ii) provide information in response to the request of the person who has made such proposal or offer, if and only if, prior to providing such information, the Company has received from the person so requesting such information an executed confidentiality agreement in reasonably customary form; provided that such confidentiality agreement shall not include any provision calling for any exclusive right to negotiate with such person or having the effect of prohibiting the Company from satisfying its obligations under this Agreement, provided further that the Company shall concurrently make available to Parent any information concerning the Company and the Subsidiaries that is provided to any such person and that was not previously made available to Parent or its Representatives; and
(iii) engage or participate in any discussions or negotiations with the person who has made such proposal or offer; provided, that prior to taking any actions described in clause (ii) or (iii) above, the Special Committee has provided written notice to Parent at least three (3) Business Days prior to taking any such action, and has (A) determined, in its good faith judgment, after consultation with its financial advisor and outside legal counsel, that such proposal or offer constitutes or would reasonably be expected to result in a Superior Proposal, and (B) determined, in its good faith judgment, after consultation with its financial advisor and outside legal counsel, that, in light of such Superior Proposal, failure to take such action would be inconsistent with the fiduciary duties of the Company Board under applicable Law.
(c) Except as set forth in Section 6.04(d), neither the Company Board nor any committee thereof shall (i) (A) change, withhold, withdraw (or not continue to make), qualify or modify (or publicly propose to change, withhold, withdraw (or not continue to make), qualify or modify), in a manner adverse to Parent or Merger Sub, the Company Recommendation, (B) fail to make the Company Recommendation or fail to include the Company Recommendation in the Proxy Statement, (C) adopt, approve or recommend, or publicly propose to adopt, approve or recommend to the shareholders of the Company, a Competing Transaction, (D) if a tender offer or exchange offer that constitutes a Competing Transaction is commenced, (x) fail to publicly recommend against acceptance of such tender offer or exchange offer by the Company shareholders (including, for these purposes, by disclosing that it will is taking no position with respect to the acceptance of such tender offer or exchange offer by its shareholders, which shall constitute a failure to recommend against acceptance of such tender offer or exchange offer), provided that a customary “stop, look and listen” communication by the Company Board pursuant to Rule 14d−9(f) of the Exchange Act or a statement that the Company Board has received and is currently evaluating such Competing Transaction shall not be prohibited, or (y) fail to publicly reaffirm the Company Recommendation, in each case of (x) and (y) within two (2) Business Days after Parent so requests in writing, (E) fail to recommend against any Competing Transaction subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten (10) Business Days after the commencement of such Competing Transaction, or (F) take any action or make any statement inconsistent with the necessary steps to promptly inform each Company Subsidiary and each Representative Recommendation (any of the foregoing, a “Change in the Company Recommendation”), or (ii) cause or permit the Company or any Company Subsidiary of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other or similar document or Contract with respect to any Competing Transaction other than a confidentiality agreement referred to in Section 6.02(b) entered into in compliance with Section 6.04(b) (an “Alternative Acquisition Agreement”).
(d) Notwithstanding anything to the contrary set forth in this Agreement, from the date of this Agreement and at any time prior to the receipt of the obligations undertaken Requisite Company Vote, if the Company has received a bona fide written proposal or offer with respect to a Competing Transaction which was not withdrawn and which was not obtained in violation of Section 6.04 and the Company Board determines, in its good faith judgment upon the unanimous recommendation of the Special Committee (after consultation with its financial advisor and outside legal counsel), that such proposal or offer constitutes a Superior Proposal and failure to make a Change in the Company Recommendation with respect to such Superior Proposal would be inconsistent with its fiduciary duties under applicable Law, the Company Board may, upon the recommendation of the Special Committee, (A) effect a Change in the Company Recommendation and/or (B) with respect to such Superior Proposal, authorize the Company to terminate this Agreement in accordance with Section 8.03(c) and enter into an Alternative Acquisition Agreement, but only (i) if the Company shall have complied with the requirements of Section 6.04(a) and Section 6.04(b) with respect to such proposal or offer; (ii) after (A) providing at least six (6) Business Days’ (the “Superior Proposal Notice Period”) written notice to Parent (a “Notice of Superior Proposal”) advising Parent that the Company Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (and providing any proposed agreements related thereto), identifying the person making such Superior Proposal and indicating that the Company Board intends to effect a Change in the Company Recommendation and/or authorize the Company to terminate this Agreement in accordance with Section 8.03(c) and the manner in which it intends (or may intend) to do so, it being understood that the Notice of Superior Proposal or any amendment or update thereto or the determination to so deliver such notice shall not constitute a Change in the Company Recommendation, (B) negotiating with and causing its financial and legal advisors to negotiate with Parent, Merger Sub and their respective Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement and the Equity Financing, so that such Third Party proposal or offer would cease to constitute a Superior Proposal, and (C) permitting Parent and its Representatives to make a presentation to the Company Board and the Special Committee regarding this Agreement, the Equity Financing and any adjustments with respect thereto (to the extent Parent desires to make such presentation); provided that any material modifications to such Third Party proposal or offer that the Company Board has determined to be a Superior Proposal shall be deemed a new Superior Proposal and the Company shall be required to again comply with the requirements of this Section 6.04, provided, further, that with respect to the new written notice to Parent, the Superior Proposal Notice Period shall be deemed to be a four (4) Business Day period rather than the six (6) Business Day period first described above; and (iii) following the end of such six (6) Business Day period or four (4) Business Day period (as applicable), the Company Board shall have determined, in its good faith judgment upon the unanimous recommendation of the Special Committee (after consultation with its financial advisor and outside legal counsel), that taking into account any changes to this Agreement and the Equity Financing proposed by Parent and Merger Sub in response to the Notice of Superior Proposal or otherwise, that the proposal or offer with respect to the Competing Transaction giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal. None of the Company, the Company Board or any committee of the Company Board shall enter into any Contract with any Third Party to limit or not to give prior notice to Parent of its intention to effect a Change in the Company Recommendation.
(e) Notwithstanding anything in this Section 6.056.04 to the contrary, prior to obtaining the Requisite Company Vote, if an Intervening Event shall have occurred and be continuing, and other than in response to or in connection with a Superior Proposal, if the board of directors of the Company determines, in its good faith judgment upon the recommendation of the Special Committee (after consultation with its financial advisor and outside legal counsel), that failure to effect a Change in the Company Recommendation and/or terminate this Agreement pursuant to Section 8.03 would be inconsistent with its fiduciary duties under applicable Law, the board of directors of the Company may, upon the recommendation of the Special Committee, effect Change in the Company Recommendation and/or terminate this Agreement pursuant to Section 8.03(c); provided that prior to effecting such Change in the Company Recommendation, (i) the Company has provided Parent at least six (6) Business Days’ prior written notice with reasonable details about the Intervening Event indicating that the board of directors of the Company intends to effect a Change in the Company Recommendation and/or terminate this Agreement, and (ii) during the six (6) Business Day period following Parent and Merger Sub’s receipt of the aforementioned notice, the Company shall, and shall cause its Representatives to, negotiate with Parent and Merger Sub in good faith (to the extent Parent and Merger Sub desire to negotiate) to make such adjustments in the terms and conditions of this Agreement, so that it would no longer be inconsistent with the board of directors’ fiduciary obligations not to effect a Change in the Company Recommendation, and (iii) following the end of the six (6) Business Day period, the board of directors of the Company (acting at the direction of the Special Committee following consultation with its financial advisor and outside legal counsel) shall have determined in good faith, taking into account any changes to this Agreement proposed in writing by Parent and Merger Sub in response to the aforementioned notice, that it would continue to be inconsistent with the board of directors’ fiduciary duties under applicable Law not to effect the Change in the Company Recommendation in light of the Intervening Event.
(f) Nothing contained in this Section 6.04 shall be deemed to prohibit the Company, the Company Board or the Special Committee from (i) complying with its disclosure obligations under U.S. federal or state or non-U.S. Law with regard to a Competing Transaction, including taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act (or any similar communication to shareholders in connection with the making or amendment of a tender offer or exchange offer); provided that any such disclosure (o
Appears in 2 contracts
Sources: Merger Agreement (Tang Liang), Merger Agreement (Ossen Innovation Co. Ltd.)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary shallEach of Sirona and DENTSPLY shall immediately cease, and that it shall cause its respective Subsidiaries and Representatives to immediately cease, any discussions or negotiations with any Person that may be ongoing with respect to a Competing Proposal, or any proposal that could reasonably be expected to lead to a Competing Proposal, and shall request to have returned promptly to Sirona or DENTSPLY, as applicable, any confidential information that has been provided in any such discussions or negotiations. From the date hereof until the earlier of the Effective Time or the date of termination of this Agreement in accordance with Article 7, each Company Subsidiary's of Sirona and DENTSPLY shall not, and shall cause its respective Subsidiaries and Representatives not to, directly or indirectly, initiate, (i) solicit, initiate or knowingly encourage or otherwise facilitate induce (including by way of furnishing information) information which has not been previously publicly disseminated), or take any other action designed to facilitate, any inquiries or the making of any proposalproposal which constitutes, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not lead to, directly any Competing Proposal, or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or (ii) engage in any discussions or negotiations concerning an Acquisition Proposal, or otherwise facilitate regarding any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Competing Proposal; provided, however, that (x) such party may ascertain facts from the Person making an unsolicited Competing Proposal for the sole purpose of the Sirona Board or the DENTSPLY Board, as applicable, informing itself about the terms of such Competing Proposal and the Person that made it and (y) if, prior to obtaining the Sirona Shareholder Approval (in the case of Sirona) or the DENTSPLY Shareholder Approval (in the case of DENTSPLY) and following the receipt of a bona fide written Competing Proposal made after the date hereof that the Sirona Board or DENTSPLY Board, as applicable, determines in good faith (after receiving advice of its financial advisor and of its outside legal counsel) is or could reasonably be expected to lead to a Superior Proposal and that was not, directly or indirectly, solicited, initiated or knowingly encouraged in violation of this Section 5.4, the Sirona Board or the DENTSPLY Board, as applicable, determines in good faith, after consultation with outside legal counsel, that a failure to take action with respect to such Competing Proposal, as applicable, would be inconsistent with its fiduciary duties to Sirona’s shareholders or DENTSPLY’s shareholders, as applicable, under applicable Law, Sirona or DENTSPLY may, in response to such Competing Proposal, as applicable, and subject to compliance with Section 5.4(c), (A) furnish information with respect to Sirona or DENTSPLY, as applicable, to the Person making such Competing Proposal pursuant to an Acceptable Confidentiality Agreement, and (B) engage in discussions or negotiations with such Person regarding such Competing Proposal. Except as expressly permitted by this Section 5.4, each of DENTSPLY and Sirona shall not, and shall cause their respective Subsidiaries and Representatives not to, from and after the date of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Article 7, directly or indirectly (1) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar definitive agreement (other than an Acceptable Confidentiality Agreement) with respect to any Competing Proposal; (2) take any action to make the provisions of any takeover statute inapplicable to any transactions contemplated by a Competing Proposal; or (3) terminate, amend, release, modify or knowingly fail to enforce any provision of, or grant any permission, waiver or request under, any standstill, confidentiality or similar agreement entered into by the applicable party in respect of or in contemplation of a Competing Proposal (other than to the extent the DENTSPLY Board or the Sirona Board, as applicable, determines in good faith after consultation with its outside legal counsel, that failure to take any of such actions under clause (3) would be inconsistent with its fiduciary duties under applicable Law), or (4) propose to do any of the foregoing. For the avoidance of doubt, nothing contained in this Agreement Section 5.4(a) shall prevent relieve any party from its obligations under Section 5.6.
(b) Notwithstanding any other provision of this Agreement, including Section 5.3 but subject to compliance with this Section 5.4, prior to receipt of the Company Sirona Shareholder Approval, the Sirona Board may, or, prior to receipt of the DENTSPLY Shareholder Approval, the DENTSPLY Board may, in response to any bona fide written Competing Proposal that was not, directly or the Company's Board indirectly, solicited, initiated or knowingly encouraged in violation of Directors from this Section 5.4, effect a Sirona Adverse Recommendation Change or a DENTSPLY Adverse Recommendation Change, as applicable, if and only if (i) complying the Sirona Board or the DENTSPLY Board, as applicable, concludes in good faith, after consultation with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; Sirona’s or DENTSPLY’s outside financial advisors and outside legal counsel, that such Competing Proposal constitutes a Superior Proposal and (ii) engaging the DENTSPLY Board or the Sirona Board, as applicable, provides the other party five (5) Business Days prior written notice of its intention to take such action (a “Competing Proposal Notice”), which notice shall include the information with respect to such Competing Proposal that is specified in Section 5.4(c), as well as a copy of such Competing Proposal (it being agreed that neither the delivery of such notice by a party nor any discussions public announcement thereof that such party determines it is required to make under applicable Law shall constitute a Sirona Adverse Recommendation Change or negotiations witha DENTSPLY Adverse Recommendation Change, as applicable, unless and until such party shall have failed at or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal prior to the holders end of Company Common Stock if and only to the extent that, in any such case as is period referred to in clause (iiiii) below (and, upon the occurrence of such failure, such notice and such public announcement shall constitute a Sirona Adverse Recommendation Change or a DENTSPLY Adverse Recommendation Change, as applicable) to publicly announce that it (A) is recommending the Transactions and (B) has determined that such other Competing Proposal (taking into account (x) any modifications or adjustments made to the Transactions agreed to by the other party in writing and (y) any modifications or adjustments made to such other Competing Proposal) is not a Superior Proposal and has publicly rejected such Competing Proposal); (iii) during the five (5) Business Days following such written notice (the “Negotiation Period”), if requested by the other party, the Board of Directors effecting the recommendation change and its Representatives have negotiated in good faith with the other party regarding any revisions to the terms of the Transactions proposed by the other party in response to such Competing Proposal; and (iv) at the end of the five (5) Business Day period described in the foregoing clause (iii), the Sirona Board or DENTSPLY Board, as applicable, concludes in good faith, after consultation with Sirona’s or DENTSPLY’s outside legal counsel and financial advisors (A) and taking into account any adjustment or modification of the Company's terms of this Agreement to which the other party has agreed in writing to make to the terms of the Transactions), that the Competing Proposal continues to be a Superior Proposal and, after consultation with Sirona’s or DENTSPLY’s outside legal counsel, that the failure to make a Sirona Adverse Recommendation Change or DENTSPLY Adverse Recommendation Change, as applicable, would be inconsistent with the exercise by the Sirona Board or DENTSPLY Board of Directors concludes its fiduciary duties to the shareholders of Sirona or shareholders of DENTSPLY under applicable Law. Any material amendment or modification to any Competing Proposal shall require a new Competing Proposal Notice and the Negotiation Period shall be extended by an additional three (3) Business Days from the date of receipt of such new Competing Proposal Notice.
(c) In addition to the obligations of DENTSPLY and Sirona set forth in Section 5.4(a) and Section 5.4(b), DENTSPLY or Sirona shall promptly, and in any event no later than 24 hours, after it receives (i) any Competing Proposal or indication by any Person that is considering making a Competing Proposal, (ii) any request for non-public information relating to DENTSPLY or Sirona or their respective Subsidiaries other than requests for information in the ordinary course of business consistent with past practice and unrelated to a Competing Proposal or (iii) any inquiry or request for discussions or negotiations regarding any Competing Proposal, notify the other party orally and in writing of any of the foregoing occurrences, the identity of the person making such request, inquiry or Competing Proposal and a copy of such request, inquiry or Competing Proposal (or where no such copy is available, a reasonably detailed description of such request, inquiry or Competing Proposal), including any modifications thereto. Each party shall keep the other party reasonably informed (orally and in writing) on a current basis (and in any event at the other party’s request and otherwise no later than 24 hours after the occurrence of any material changes, developments, discussions or negotiations) of the status of any request, inquiry or Competing Proposal (including the terms and conditions thereof and of any modification thereto), and any material developments, discussions and negotiations, including furnishing copies of any written inquiries, material correspondence and draft documentation, and written summaries of any material oral inquiries or discussions. Without limiting the foregoing, each party shall promptly (and in any event within 24 hours) notify the other party orally and in writing if it determines to begin providing information or to engage in discussions or negotiations concerning a Competing Proposal pursuant to Section 5.4. Each of DENTSPLY and Sirona agrees that, subject to applicable restrictions under applicable Law, it shall, prior to or concurrent with the time it is provided to any third parties, provide to the other party any non-public information concerning DENTSPLY or Sirona and their respective Subsidiaries that DENTSPLY or Sirona provided to any third party in connection with any Competing Proposal which was not previously provided to the other party.
(d) Notwithstanding anything in this Section 5.4 to the contrary, at any time prior to obtaining the DENTSPLY Shareholder Approval or the Sirona Shareholder Approval, the DENTSPLY Board or the Sirona Board may make a DENTSPLY Adverse Recommendation Change or a Sirona Adverse Recommendation Change, as applicable, if (i) such board determines that an Intervening Event has occurred and is continuing and (ii) such board determines in good faith (after consultation with its legal counsel and financial advisorsoutside counsel) that the failure to make a DENTSPLY Adverse Recommendation Change or a Sirona Adverse Recommendation Change, as applicable, in response to such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent Intervening Event would be inconsistent with its fiduciary duties to the applicable party’s shareholders under applicable law, Law; provided that (Cx) the DENTSPLY Board or the Sirona Board has given the other party at least five (5) Business Days prior written notice of its intention to take such action and specifying in reasonable detail the circumstances related to such determination and (y) prior to providing effecting a DENTSPLY Adverse Recommendation Change or a Sirona Adverse Recommendation Change, the applicable party has negotiated, and has caused its Representatives to negotiate, in good faith with the other party during such notice period to the extent such other party wishes to negotiate, to enable such party to revise the terms of this Agreement, such that the failure to make a DENTSPLY Adverse Recommendation Change or a Sirona Adverse Recommendation Change, as applicable, would not be inconsistent with its fiduciary duties to shareholders under applicable Law.
(e) Nothing contained in this Agreement shall prohibit the DENTSPLY Board or the Sirona Board from (i) taking and disclosing to their shareholders, as applicable, a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or making a statement contemplated by Item 1012(a) of Regulation M-A or Rule 14d-9 promulgated under the Exchange Act, (ii) making any disclosure to their shareholders, as applicable, if the Sirona Board or DENTSPLY Board determines in good faith, after consultation with its outside counsel, that the failure to make such disclosure would be inconsistent with its duties to shareholders under, or would violate, applicable Law; or (iii) making accurate disclosure to their shareholders, as applicable, of factual information regarding the business, financial condition or data results of operations of DENTSPLY or Sirona or the fact that a Competing Proposal has been made, the identity of the party making such proposal or the material terms of such proposal (and such disclosure shall not be deemed to any Person in connection with be a Superior Proposal by DENTSPLY Adverse Recommendation Change or a Sirona Adverse Recommendation Change, as applicable), so long as (A) any such Persondisclosure includes the DENTSPLY Recommendation or the Sirona Recommendation, as applicable, without any modification or qualification thereof and continues the Company's prior recommendation of the DENTSPLY Board or Sirona Board, as the case may be, and (B) does not contain either an express DENTSPLY Adverse Recommendation Change (without giving effect to clause (y) of the definition thereof) or an express Sirona Adverse Recommendation Change (without giving effect to clause (y) of the definition thereof), as applicable, or any other statements by or on behalf of the Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiriesparty which would reasonably be expected to have the same effect as a DENTSPLY Adverse Recommendation Change or a Sirona Adverse Recommendation Change, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiationsas applicable.
(bf) The Company agrees that it will take the necessary steps Any failure of DENTSPLY’s or Sirona’s respective Subsidiaries or its and their respective Representatives to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken in fully comply with this Section 6.055.4 (as if such Subsidiaries or Representatives were directly subject to this Section 5.4) shall be deemed a breach of this Section 5.4 by DENTSPLY or Sirona, as applicable.
(g) For purposes of this Agreement:
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Dentsply International Inc /De/), Merger Agreement (Sirona Dental Systems, Inc.)
No Solicitation of Transactions. (a) The Company agrees that neither it nor no Group Company and none of the directors or officers of any Group Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's its Subsidiaries’ Representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Group Company), not to, in each case, directly or indirectly, initiate, (i) solicit, initiate or encourage or otherwise facilitate (including by way of furnishing information) information in a manner designed to encourage), or take any other action to facilitate, any inquiries or the making of any proposalAcquisition Proposal (including, without limitation, any proposal or offer to its shareholders) that constitutes, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not lead to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any enter into, maintain or continue discussions or negotiations with, or providing provide any nonpublic information relating to any Group Company or the Transactions to, any Person person or entity in response connection with, or in order to obtain, an unsolicited bona fide written Acquisition Proposal by any such Person; Proposal, or (iii) recommending such an unsolicited bona fide written agree to, approve, adopt, endorse or recommend (or publicly propose to agree to approve, adopt, endorse or recommend) any Acquisition Proposal Proposal, or enter into any Alternative Acquisition Agreement, or consummate, any Acquisition Proposal, or (iv) authorize or permit any of the officers, directors or Representatives of any Group Company to the holders take any action set forth in clauses (a)(i) – (a)(iii) of Company Common Stock if and only this Section 6.04 (in each case, other than to the extent thatexpressly permitted pursuant to Section 6.04(b), 6.04(c) or 6.04(d)). The Company shall notify Parent as promptly as practicable (and in any such case as is referred to in clause event within twenty-four (ii24) or (iiihours after the Company has knowledge thereof), orally and in writing, of any proposal or offer, or any request for information or other inquiry or request, that could reasonably be expected to lead to an Acquisition Proposal, specifying (x) the material terms and conditions thereof (including material amendments or proposed material amendments) and providing, if applicable, copies of any written requests, proposals or offers, including proposed agreements, (y) the identity of the party making such proposal or offer or inquiry or contact, and (z) whether the Company has any intention to provide confidential information to such person. The Company shall keep Parent informed, on a reasonably current basis (and in any event within twenty-four (24) hours of the occurrence of any material changes, developments, discussions or negotiations) of the status and terms of any such proposal, offer, inquiry, contact or request and of any material changes in the status and terms of any such proposal, offer, inquiry, contact or request (including the material terms and conditions thereof) and providing, if applicable, copies of any written requests, proposals or offers, including proposed agreements. Without limiting the foregoing, the Company shall (A) the Company's Board of Directors concludes promptly notify Parent orally and in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completedwriting if it determines to initiate actions concerning a proposal, taking into account all legaloffer, financialinquiry, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposalcontact or request, in each case as permitted by this Section 6.04, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) provide Parent with forty-eight (48) hours prior notice (or such lesser prior notice as is provided to the Company's members of the Company Board or members of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (Cthe Special Committee) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals meeting of the Company Board or offersSpecial Committee at which the Company Board or Special Committee, as applicable, may consider any Acquisition Proposal. The Company agrees that it will immediately shall cease and cause to be terminated any all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any an Acquisition Proposal. The Company agrees that it shall keep IHK informednot, on a current basisand shall cause its Subsidiaries not to, of enter into any confidentiality agreement with any Third Party which prohibits the status and terms of Company from providing such information to Parent, or release any such proposals Third Party from, or offers and the status of waive any such discussions provision of, any confidentiality or negotiationsstandstill agreement in connection with an Acquisition Proposal, other than as expressed permitted under this Section 6.04.
(b) The Subject to compliance with the other provisions of this Section 6.04, prior to obtaining the Requisite Company agrees Vote, the Company Board may directly or indirectly through the Company’s Representatives (i) contact any Third Party that has made an unsolicited, written, bona fide proposal or offer regarding an Acquisition Proposal that was not initiated or solicited in breach of Section 6.04(a) solely in order to clarify the terms and conditions thereof so as to assess whether such proposal or offer constitutes or is reasonably expected to result in a Superior Proposal, and (ii) furnish information to, and enter into discussions with, such Third Party to the extent the Special Committee has (A) determined in good faith (after consultation with a financial advisor who shall be an independent internationally recognized investment banking firm and outside legal counsel) that such proposal or offer constitutes or is reasonably likely to result in a Superior Proposal, and that, in light of such Superior Proposal, failure to furnish such information to or enter into discussions with such Third Party would be inconsistent with the directors’ fiduciary duties under applicable Law, and (B) obtained from such person an executed confidentiality agreement on terms no less favorable to the Company in the aggregate than those contained in the Confidentiality Agreements (it will being understood that such confidentiality agreement and any related agreements shall not include any provision for any exclusive right to negotiate with such party or having the effect of prohibiting the Company from satisfying its obligations under this Agreement and shall otherwise be on no less favorable terms to the Company than the Confidentiality Agreements); provided that the Company shall provide written notice to Parent at least two (2) Business Days prior to taking any action set forth in clauses (b)(i) or (b)(ii) of this Section 6.04 and shall concurrently make available to Parent any information concerning any Group Company that is provided to any such person and that was not previously made available to Parent or its Representatives.
(c) Except as set forth in Section 6.04(d) (and, for the avoidance of doubt, the proviso to this Section 6.04(c)), neither the Company Board nor any committee thereof shall (i) (A) withhold, withdraw, qualify, amend or modify in a manner adverse to Holdco, Parent or Merger Sub, or propose (publicly or otherwise) to withhold, withdraw, qualify, amend or modify in a manner adverse to Holdco, Parent or Merger Sub, the Company Recommendation, (B) take any action or make any other public statement in connection with the necessary steps Shareholders’ Meeting inconsistent with the Company Recommendation, (C) if a tender offer or exchange offer that constitutes an Acquisition Proposal is commenced, fail to promptly inform each recommend against acceptance of such tender offer or exchange offer by its shareholders within ten (10) Business Days after commencement (any of such actions described in the foregoing clauses (A), (B) or (C), a “Change in the Company Subsidiary Recommendation”) or (D) adopt, approve, endorse or recommend, or propose (publicly or otherwise) to adopt, approve, endorse or recommend any Acquisition Proposal, provided that a “stop, look and each Representative listen” communication by the Company Board or the Special Committee pursuant to Rule 14d-9(f) of the Exchange Act, or any substantially similar communication with respect to an Acquisition Proposal, which did not result from any breach of this Section 6.04 shall not be deemed to be a Change in the Company Recommendation, nor (ii) cause or permit the Company or any of its Subsidiaries to enter into any Alternative Acquisition Agreement.
(d) Notwithstanding the foregoing but subject to compliance by the Company Subsidiary and the Company Board with this Section 6.04, from the date of this Agreement and at any time prior to the receipt of the Requisite Company Vote, the Company Board (upon the unanimous recommendation of the Special Committee) may (x) in response to an Intervening Event, effect a Change in the Company Recommendation and authorize the Company to terminate this Agreement or (y) if the Company has received an unsolicited, bona fide written Acquisition Proposal and the Special Committee determines, in its good faith judgment, upon advice by a financial advisor who shall be an internationally recognized investment banking firm and outside legal counsel, that such Acquisition Proposal constitutes a Superior Proposal, effect a Change in the Company Recommendation with respect to such Superior Proposal and authorize the Company to terminate this Agreement to enter into any letter of intent, Contract, commitment or obligation with respect to such Superior Proposal, but only if:
(1) the Company shall have complied with its obligations undertaken under this Section 6.04;
(2) (A) with respect to a Change in the Company Recommendation in response to an Intervening Event, the Company Board (upon the unanimous recommendation of the Special Committee, after consultation with its financial advisor who shall be an internationally recognized investment banking firm and outside legal counsel) determines in good faith that failure to do so would be inconsistent with its fiduciary duties under applicable Laws, or (B) with respect to a Change in the Company Recommendation or a termination of this Agreement to enter into an Alternative Acquisition Agreement with respect to a bona fide written Acquisition Proposal that did not result from a breach of this Section 6.04, the Company Board (upon the unanimous recommendation of the Special Committee, after consultation with its internationally recognized investment banking firm and outside legal counsel) determines in good faith that (x) failure to take such action would be inconsistent with its fiduciary duties under applicable Laws, (y) such Acquisition Proposal constitutes a Superior Proposal;
(3) prior to effecting a Change in the Company Recommendation in connection with, or a termination of this Agreement as a result of, an Intervening Event in accordance with Section 6.04(d)(x), or a Change in the Company Recommendation in connection with, or a termination of this Agreement to enter into an Alternative Acquisition Agreement with respect to, a bona fide written Acquisition Proposal in accordance with Section 6.04(d)(y), the Company shall have complied with the requirements of this Section 6.04 and shall (x) provide at least five (5) days’ prior written notice to Parent (the “Notice Period”) advising Parent (A) of the specific material circumstances of such Intervening Event or (B) that the Company Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal, providing a copy of any written documentation with respect to such Superior Proposal and identifying the person making such Superior Proposal and indicating that the Company Board intends to effect a Change in the Company Recommendation and the manner in which it intends (or may intend) to do so, it being understood that such notice or any amendment or update thereto or the determination to so deliver such notice shall not constitute a Change in the Company Recommendation, and (y) permit Parent and its Representatives to make a presentation to the Company Board and the Special Committee regarding this Agreement and any proposed modifications or adjustments with respect thereto (to the extent Parent desires to make such presentation) and negotiate with and cause its financial and legal advisors to negotiate with Parent and its Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal would cease to constitute a Superior Proposal or so that a failure to effect a Change in the Company Recommendation would no longer be inconsistent with the directors’ fiduciary duties under applicable Law, as applicable, and consider in good faith any modifications or adjustments regarding this Agreement proposed by Parent; provided that any material modifications to such Acquisition Proposal that the Special Committee previously determined to be a Superior Proposal shall be deemed a new Acquisition Proposal and the Company shall be required to again comply with the requirements of this Section 6.04(d); and
(4) following the end of the Notice Period (and any renewed period thereof), the Special Committee shall have unanimously determined in good faith (after consultation with a financial advisor who shall be an internationally recognized investment banking firm and outside legal counsel, as applicable) after considering the terms of any modifications or adjustments to this Agreement proposed by Parent, that (x) with respect to a Change in the Company Recommendation in accordance with Section 6.04(d)(x) or Section 6.04(d)(y), failure to effect a Change in the Company Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Laws, and shall have communicated its unanimous recommendation to the Company Board to effect a Change in the Company Recommendation with respect to such Intervening Event or such Superior Proposal and (y) with respect to a Change in the Company Recommendation in connection with, or a termination of this Agreement to enter into an Alternative Acquisition with respect to a bona fide written Acquisition Proposal in accordance with Section 6.04(d)(y), such Acquisition Proposal continues to constitute a Superior Proposal.
(e) Nothing contained in this Section 6.056.04 shall be deemed to prohibit the Company or the Company Board (or the Special Committee) from complying with its disclosure obligations under applicable Laws, including U.S. federal Law, with regard to an Acquisition Proposal, including taking and disclosing to its shareholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) under the Exchange Act (or any similar communication to shareholders); provided that any such disclosure (other than a statement that the Company Board or the Special Committee has received and is currently evaluating such Acquisition Proposal and/or describing the operation of this Agreement with respect thereto, or a “stop, look and listen” communication or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) shall be deemed to be a Change in the Company Recommendation unless the Company Board expressly publicly reaffirms the Company Recommendation within two (2) Business Days following any request by Parent.
Appears in 2 contracts
Sources: Merger Agreement (Chuanwei Zhang), Merger Agreement (China Ming Yang Wind Power Group LTD)
No Solicitation of Transactions. (a) The Promptly after the Agreement Date, subject to the other provisions of this Section 4.6, the Company shall, shall cause its Subsidiaries and its and their respective directors and officers to, and shall instruct and use its reasonable best efforts to cause the other Company Representatives to, cease and cause to be terminated, and not authorize or knowingly permit to continue, any discussions or negotiations with any Person (other than Parent and Merger Sub), or any representative thereof, conducted prior to the date of this Agreement with respect to an Acquisition Proposal or any Acquisition Inquiry, terminate “data room” access to such Persons, and request the prompt return or destruction of all confidential information previously furnished to any Person within the last six months for the purposes of evaluating a possible Acquisition Proposal and any documents and other materials containing such information.
(b) Except as permitted by this Section 4.6, the Company agrees that neither it nor any Company Subsidiary shallshall not, and that it shall cause its Subsidiaries and each its and their respective directors and officers not to, and the Company Subsidiary's shall instruct and use its reasonable best efforts to cause the other Company Representatives not to, and shall not authorize or knowingly permit any of the Company Representatives to, directly or indirectly, :
(i) initiate, solicit, knowingly facilitate or knowingly encourage the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry or otherwise facilitate (including by way of furnishing information) any inquiries knowingly assist or participate in the making making, submission or announcement of any proposalAcquisition Proposal or Acquisition Inquiry;
(ii) engage in, participate in or offer continue discussions or negotiations with any Person or any representative thereof with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution an Acquisition Proposal or similar transaction involving, or any purchase or sale of all or any significant portion of Acquisition Inquiry (it being understood that the assets or 20% or more of the equity securities of, foregoing shall not prohibit the Company or any the Company Subsidiary that, Representatives from making such Person or representative aware of the restrictions of this Section 4.6 in response to the receipt of an Acquisition Proposal or Acquisition Inquiry or prohibit discussions to the extent necessary to clarify the terms of any such caseAcquisition Proposal or Acquisition Inquiry solely to determine whether such Acquisition Proposal or Acquisition Inquiry constitutes or is reasonably likely to lead to or result in a Superior Proposal);
(iii) enter into any merger agreement, could reasonably be expected to interfere with the completion letter of the Merger intent, term sheet, agreement in principle, memorandum of understanding, share purchase agreement, asset purchase agreement, share exchange agreement or the other transactions contemplated by this Agreement (any such proposal similar agreement constituting or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal (other than an Acceptable Confidentiality Agreement) (an “Alternative Acquisition Agreement”) or engage enter into any Contract or agreement requiring the Company to abandon, terminate or fail to consummate the Transactions, or approve any transaction under, or any third party becoming an “interested stockholder” (or any other equivalent term) under, Section 203 of the DGCL or any Takeover Law;
(iv) terminate, waive, amend or modify any provision of, or grant permission under, any confidentiality agreement or explicit standstill obligation or similar agreement to which the Company or any of its Subsidiaries is a party;
(v) furnish to any Person or any representative thereof (other than to Parent, Merger Sub or any designees of Parent or Merger Sub) any information relating to the Company or any of its Subsidiaries or afford to any Person or any representative thereof access to the business, properties, assets, books, records or other information, or to any personnel, of the Company or any of its Subsidiaries (other than Parent, Merger Sub or any designees of Parent or Merger Sub), in any negotiations concerning an Acquisition Proposalsuch case with the intent to induce the making, submission or announcement of, or otherwise to knowingly encourage, facilitate or assist, any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition ProposalInquiry; providedor
(vi) approve, howeverauthorize, that nothing contained resolve or agree, or publicly announce any intention to take any of the foregoing actions.
(c) Notwithstanding anything in this Agreement shall prevent to the contrary, at any time following the Agreement Date and prior to obtaining the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations withStockholder Approval, or providing any information to, any Person in response to an unsolicited a bona fide written Acquisition Proposal by any such Person; or that did not result from a breach of the terms of this Section 4.6 (iiia “Qualifying Acquisition Proposal”) recommending such an unsolicited bona fide written Acquisition Proposal to that the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes determines in good faith (after consultation with its financial advisor and outside legal counsel counsel) constitutes, or is reasonably likely to lead to or result in, a Superior Proposal, the Company and financial advisorsthe Company Representatives shall be permitted to (i) furnish to the Person that such has made the Qualifying Acquisition Proposal is reasonably capable of being completed(and such Person’s representatives) information relating to the Company and its Subsidiaries and/or afford access to the business, taking into account all legalproperties, financialassets, regulatory and books, records or other aspects of the Acquisition Proposal and the Person making the Acquisition Proposalnon-public information, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Personpersonnel, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiations.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any of its Subsidiaries, in each case pursuant to an Acceptable Confidentiality Agreement (provided that the Company Subsidiary shall concurrently provide or make available to Parent any such information or access that is provided to such Person and its representatives and that was not previously provided or made available to Parent), and (ii) engage or participate in discussions or negotiations with the Person (or such Person’s representatives) that has made the Qualifying Acquisition Proposal. Within 24 hours of such determination of the obligations undertaken Company Board, and in any event prior to or substantially concurrently with the Company first taking any of the actions described in the immediately preceding sentence (including any action relating to an Acceptable Confidentiality Agreement), the Company shall provide written notice to Parent of the determination of the Company Board made pursuant to the immediately preceding sentence.
(d) The Company shall promptly (and in any event within 24 hours) (i) provide Parent written notice of the receipt by the Company of any Acquisition Inquiries or Acquisition Proposals and (ii) disclose to Parent the material terms of any such Acquisition Proposal or Acquisition Inquiry and the identity of the Person making such Acquisition Proposal or Acquisition Inquiry. The Company shall keep Parent reasonably informed on a reasonably prompt basis (and in any event within 24 hours) of any material development or material change in the status, terms or conditions (including material amendments) of any such Acquisition Inquiry or Acquisition Proposal, and shall, as promptly as practicable, and in any event within 24 hours of receipt thereof, provide Parent with unredacted copies of all writings or media containing any material terms or conditions of any such Acquisition Proposal or Acquisition Inquiry and any proposed transaction agreements (including all schedules, exhibits and attachments) relating to any such Acquisition Proposal or Acquisition Inquiry and any financing commitments relating thereto. The Company shall promptly, and in any event within 24 hours, following a determination by the Company Board that an Acquisition Proposal is a Superior Proposal, notify Parent of such determination.
(e) Except as permitted by Section 4.6(f) and Section 4.6(g), prior to obtaining the Company Stockholder Approval, the Company Board shall not (i) (1) withdraw, change, amend, modify or qualify or publicly propose to withdraw, change, amend, modify or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (2) fail to include the Company Board Recommendation in the Proxy Statement/Prospectus when disseminated to Company Stockholders, (3) approve, adopt, endorse, declare advisable or recommend to the Company Stockholders, or publicly propose to approve, adopt, endorse, declare advisable or recommend to the Company Stockholders, any Acquisition Proposal, (4) if any Acquisition Proposal is structured as a tender offer or exchange offer and is commenced pursuant to Rule 14d-2 under the Exchange Act (other than by Parent or an affiliate of Parent), fail to recommend, within ten Business Days after such commencement, against acceptance by Company Stockholders of such tender offer or exchange offer or (5) publicly propose to do any of the foregoing (actions prohibited by this clause (i) being referred to as a “Change of Board Recommendation”) or (ii) authorize, cause or permit the Company or any of its Subsidiaries to enter into any Alternative Acquisition Agreement.
(f) Notwithstanding anything in this Agreement to the contrary, the Company Board may (x) effect a Change of Board Recommendation and/or (y) terminate this Agreement pursuant to Section 6.056.1(d)(i), if (i) the Company receives a Qualifying Acquisition Proposal that the Company Board determines in good faith (after consultation with its financial advisor and outside legal counsel) is a Superior Proposal and (ii) the Company Board determines in good faith (after consultation with its outside legal counsel) that its failure to effect a Change of Board Recommendation or terminate this Agreement would reasonably be expected to be inconsistent with its fiduciary duties to the Company Stockholders under applicable Law; provided that the Company Board may not effect a Change of Board Recommendation pursuant to the foregoing clause (x) or terminate this Agreement pursuant to the foregoing clause (y) unless:
(i) the Company shall have provided prior written notice to Parent, at least four days in advance (the “Superior Proposal Notice Period”), of its intention to effect such a Change of Board Recommendation (which notice itself shall not constitute a Change of Board Recommendation) or terminate this Agreement to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, which notice shall specify the material terms and conditions of such Superior Proposal and the identity of the Person or group making such Superior Proposal, and shall have contemporaneously provided a copy of the relevant proposed definitive transaction agreements with the Person making such Superior Proposal;
(ii) if requested by Parent, the Company shall have negotiated with Parent in good faith during the Superior Proposal Notice Period in order to enable Parent to modify the terms of this Agreement in such a manner that would cause such Superior Proposal to no longer constitute a Superior Proposal;
(iii) following the end of such Superior Proposal Notice Period, the Company Board shall have considered in good faith any revisions to this Agreement irrevocably committed to in writing by Parent that would, upon the Company’s acceptance thereof, be binding on Parent, and shall have determined in good faith, after consultation with its financial advisor and outside legal counsel, that such Superior Proposal continues to constitute a Superior Proposal and that failure to effect a Change of Board Recommendation or terminate this Agreement would reasonably be expected to be inconsistent with its fiduciary duties to the Company Stockholders under applicable Law, and, provided, that in the event of any change to any of the financial or other material terms of such Superior Proposal, the Company shall, in each case, deliver to Parent an additional notice consistent with that described in clause (i) of this section and a renewed notice period under clause (i) of this section shall commence (except that the four-day notice period referred to in clause (i) of this proviso shall instead be two days) during which time the Company shall be required to comply with the requirements of this section anew with respect to such additional notice; and
(iv) in the event of any termination of this Agreement in order to cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement with respect to such Acquisition Proposal, the Company will have validly terminated (or shall concurrently terminate) this Agreement in accordance with Section 6.1(d)(i), including paying the Company Termination Fee in accordance with Section 6.3.
(g) Notwithstanding anything in this Agreement to the contrary, the Company Board may effect a Change of Board Recommendation if an Intervening Event occurs and the Company Board determines in good faith (after consultation with its financial advisor and outside legal counsel) that its failure to effect a Change of Board Recommendation would reasonably be expected to be inconsistent with its fiduciary duties to the Company Stockholders under applicable Law; provided that the Company Board may not effect such Change of Board Recommendation unless:
(i) the Company shall have provided prior written notice to Parent at least four days in advance (the “Intervening Event Notice Period”) of its intention to effect such a Change of Board Recommendation (which notice itself shall not constitute a Change of Board Recommendation), which notice shall specify the details of such Intervening Event and the basis upon which the Company Board intends to effect a Change of Board Recommendation;
(ii) if requested by Parent, the Company shall have negotiated with, and shall have caused the Company Representatives to negotiate with, Parent in good faith during the Intervening Event Notice Period in order to enable Parent to modify the terms of this Agreement in such a manner that would eliminate the need for taking such action; and
(iii) following the end of such Intervening Event Notice Period, the Company Board shall have considered in good faith any revisions to this Agreement irrevocably committed to in writing by Parent that would, upon the Company’s acceptance thereof, be binding on Parent, and shall have determined in good faith, after consultation with its financial advisor and outside legal counsel, that failure to effect a Change of Board Recommendation would reasonably be expected to be inconsistent with its fiduciary duties to the Company Stockholders under applicable Law.
(h) Nothing contained in this Agreement shall prohibit the Company Board from taking and disclosing to the Company Stockholders a position contemplated by Rule 14e-2(a), complying with Rule 14d-9 under the Exchange Act or from making any disclosure to the Company Stockholders if the Company Board determines in good faith (after consultation with its outside legal counsel) that its failure to do so would be reasonably likely to be inconsistent with its fiduciary duties or applicable Law, provided that such disclosure by the Company shall state that the Company Board Recommendation continues to be in effect unless, prior to the time of such public disclosure, a Change of Board Recommendation has been made in compliance with this Section 4.6. In addition, none of the following shall be deemed to be a Change of Board Recommendation: a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act.
(i) No Change of Board Recommendation shall change the approval of the Company Board for purposes of causing any Takeover Law to be inapplicable to the Transactions. Notwithstanding anything to the contrary in the foregoing, any action that may be taken by the Company Board under this Section 4.6 may also be taken by a duly constituted committee thereof.
Appears in 2 contracts
Sources: Merger Agreement (Rocket Companies, Inc.), Merger Agreement (Redfin Corp)
No Solicitation of Transactions. (a) The Company agrees that neither it nor Subject to Section 6.1, none of Catellus or any Company Catellus Subsidiary shall, and that nor shall it shall cause its and each Company Subsidiary's Representatives not toauthorize or permit, directly or indirectly, any officer, trustee, director, employee, agent, investment banker, financial advisor, attorney, accountant, broker, finder or other agent, representative or Affiliate of Catellus or any Catellus Subsidiary to initiate, solicit, encourage or otherwise facilitate (including by way of furnishing informationnonpublic information or assistance) any inquiries or the making of any proposalproposal or other action that constitutes, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could may reasonably be expected to interfere lead to, any Competing Transaction, or enter into or participate in discussions or negotiate with the completion any Person in furtherance of the Merger such inquiries or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal")obtain a Competing Transaction. The Company further agrees that neither it nor any Company Subsidiary Catellus shall, and that it shall cause its and each Company Subsidiary's Representatives not tothe Catellus Subsidiaries and, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent thatwithin Catellus’s or any Catellus Subsidiary’s control, in any such case as is referred to, and Catellus and the Catellus Subsidiaries shall, take all actions reasonably necessary to in clause (ii) or (iii)cause their respective officers, (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and trustees, directors, employees, investment bankers, financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legalattorneys, financialaccountants, regulatory brokers, finders and any other aspects of the Acquisition Proposal and the Person making the Acquisition Proposalagents, and wouldrepresentatives or Affiliates to, if consummatedimmediately cease any discussions, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information negotiations or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations communications with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals party or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition ProposalCompeting Transaction. The Company agrees Catellus shall be responsible for any failure on the part of its officers, trustees, directors, employees, investment bankers, financial advisors, attorneys, accountants, brokers, finders and any other agents, representatives or Affiliates to comply with this Section 4.5(a). Catellus shall promptly request (if not previously requested) each Person that it shall keep IHK informedhas heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, on a current basisacquisition, of the status and terms of stock sale, asset sale or otherwise) Catellus, any such proposals or offers and the status of any such discussions or negotiations.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Catellus Subsidiary and each Representative of the Company or any Company Catellus Joint Venture, if any, to return or destroy all confidential information heretofore furnished to such Person by or on behalf of Catellus or any Catellus Subsidiary of the obligations undertaken in this Section 6.05or any Catellus Joint Venture.
Appears in 2 contracts
Sources: Merger Agreement (Catellus Development Corp), Merger Agreement (Prologis)
No Solicitation of Transactions. (a) The Until the earlier of the Effective Time and termination of this Agreement pursuant to Article VIII, except as set forth in Section 6.04(b), the Company agrees that neither it nor any Company Subsidiary shallof its Subsidiaries, and that it shall will cause its and each Company Subsidiary's its Subsidiaries’ Representatives (including any investment banker, attorney or accountant retained by any Group Company), not to, in each case, directly or indirectly, initiate, (i) solicit, initiate or knowingly encourage or otherwise facilitate (including by way of furnishing information) nonpublic information concerning any Group Company), or take any other action to knowingly facilitate, any inquiries or the making of any proposalproposal or offer (including any proposal or offer to its shareholders) that constitutes, or could reasonably be expected to lead to, any Competing Transaction, (ii) enter into, maintain or continue discussions or negotiations with, or provide any nonpublic information concerning any Group Company to, any Third Party in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve, endorse, recommend or consummate any Competing Transaction or enter into any letter of intent or Contract (other than an Acceptable Confidentiality Agreement) or commitment contemplating or otherwise relating to any Competing Transaction, (iv) grant any waiver, amendment or release under any standstill, confidentiality or similar agreement or Takeover Statutes (and the Company shall promptly take all action necessary to terminate or cause to be terminated any such waiver previously granted with respect to a mergerany provision of any such confidentiality, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution standstill or similar transaction involvingagreement or Takeover Statute and to enforce each such confidentiality, standstill and similar agreement), or (v) authorize or permit any purchase or sale of all or any significant portion of the assets or 20% or more Representatives of the equity securities of, the Company or any of its Subsidiaries to take any action set forth in clauses (i) – (iv) of this Section 6.04(a). The Company Subsidiary shall notify Parent as promptly as practicable (and in any event within forty-eight (48) hours after the Company has knowledge thereof), orally and in writing, of any proposal or offer, or any inquiry or contact with any person, regarding a Competing Transaction or that, in any such casethe Company’s good faith judgment, could reasonably be expected to interfere with lead to a Competing Transaction, specifying (x) the completion material terms and conditions thereof (including material amendments or proposed material amendments) and providing, if applicable, copies of any written requests, proposals or offers, including proposed agreements, (y) the identity of the Merger or the other transactions contemplated by this Agreement (any party making such proposal or offer being hereinafter referred or inquiry or contact, and (z) whether the Company has any intention to as an "Acquisition Proposal")provide confidential information to such person. The Company further agrees that neither it nor shall keep Parent informed, on a reasonably current basis (and in any event within forty-eight (48) hours of the occurrence of any material changes, developments, discussions or negotiations) of the status and terms of any such proposal, offer, inquiry, contact or request and of any material changes in the status and terms of any such proposal, offer, inquiry, contact or request (including the material terms and conditions thereof). Without limiting the foregoing, the Company Subsidiary shall provide Parent with forty-eight (48) hours prior notice (or such lesser prior notice as is provided to the members of the Company Board or members of the Special Committee) of any meeting of the Company Board or Special Committee at which the Company Board or Special Committee, as applicable, is reasonably expected to consider any Competing Transaction. The Company shall, and that it shall cause its Subsidiaries and each the Representatives of the Company Subsidiary's Representatives not and its Subsidiaries to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any terminate all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposala Competing Transaction. The Company agrees shall not, and shall cause its Subsidiaries not to, enter into any confidentiality agreement with any Third Party subsequent to the date of this Agreement that it shall keep IHK informed, on a current basis, of prohibits the status and terms of any Company from providing such proposals or offers and the status of any such discussions or negotiationsinformation to Parent.
(b) The Notwithstanding anything to the contrary in Section 6.04(a), at any time prior to the receipt of the Requisite Company agrees Vote, following the receipt of an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction that was not obtained in violation of this Section 6.04, the Company and its Representatives may, with respect to such proposal or offer and acting only upon the recommendation of the Special Committee:
(i) contact the person who has made such proposal or offer (A) solely to inform such person of, and direct such person to, the obligations of the Company set forth in this Section 6.04, and/or (B) to clarify and understand the terms and conditions thereof to the extent the Special Committee shall have determined in good faith that such contact is necessary to determine whether such proposal or offer constitutes a Superior Proposal or could reasonably be expected to result in a Superior Proposal;
(ii) provide information in response to the request of the person who has made such proposal or offer, if and only if, prior to providing such information, the Company has received from the person so requesting such information an executed Acceptable Confidentiality Agreement; provided, that the Company shall concurrently make available to Parent any information concerning the Company and the Subsidiaries that is provided to any such person and that was not previously made available to Parent or its Representatives; and
(iii) engage or participate in any discussions or negotiations with the person who has made such proposal or offer; provided, that prior to taking any actions described in clause (ii) or (iii), the Company Board (acting only upon recommendation of the Special Committee) or the Special Committee (to the extent it is within the authority of the Special Committee) has (A) determined, in its good faith judgment, after consultation with its financial advisor and outside legal counsel, that such proposal or offer constitutes or could reasonably be expected to result in a Superior Proposal, (B) determined, in its good faith judgment, after consultation with its financial advisor and outside legal counsel, that, in light of such Superior Proposal, failure to take such action would be inconsistent with the fiduciary duties of the Company Board or Special Committee, as applicable, under applicable Law, and (C) provided written notice to Parent at least forty-eight (48) hours prior to taking any such action.
(c) Except as set forth in Section 6.04(d) or Section 6.04(e), neither the Company Board nor any committee thereof shall (i) (A) change, withhold, withdraw, qualify or modify (or publicly propose to change, withhold, withdraw, qualify or modify), in a manner adverse to Parent or Merger Sub, the Company Recommendation, (B) fail to include the Company Recommendation in the Proxy Statement, (C) adopt, approve or recommend, or publicly propose to adopt, approve or recommend to the shareholders of the Company, a Competing Transaction, (D) if a tender offer or exchange offer that constitutes a Competing Transaction is commenced, fail to publicly recommend against acceptance of such tender offer or exchange offer by the Company shareholders (including, for these purposes, by disclosing that it will take is taking no position with respect to the necessary steps acceptance of such tender offer or exchange offer by its shareholders, which shall constitute a failure to promptly inform each recommend against acceptance of such tender offer or exchange offer) within ten (10) Business Days after the commencement thereof; provided, that a customary “stop, look and listen” communication by the Company Subsidiary Board pursuant to Rule 14d−9(f) of the Exchange Act or a statement that the Company Board has received and each Representative is currently evaluating such Competing Transaction shall not be prohibited or be deemed to be a Change in the Company Recommendation, (E) fail to recommend against any Competing Transaction subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten (10) Business Days after the commencement of such Competing Transaction, or (F) fail to publicly reaffirm the Company Recommendation following any Competing Transaction having been publicly made, proposed or communicated (and not publicly withdrawn) within ten (10) Business Days after Parent so requests in writing; provided, that Parent may not make such request more than one time with respect to any given Competing Transaction unless there shall have been a publicly disclosed change in the consideration per Share contemplated by such Competing Transaction (any of the foregoing, a “Change in the Company Recommendation”), or (ii) cause or permit the Company or any Company Subsidiary of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other or similar document or Contract with respect to any Competing Transaction, other than an Acceptable Confidentiality Agreement entered into in compliance with Section 6.04(b) (an “Alternative Acquisition Agreement”).
(d) Notwithstanding anything to the contrary set forth in this Agreement, from the date of this Agreement and at any time prior to the receipt of the obligations undertaken Requisite Company Vote, if the Company has received a bona fide written proposal or offer with respect to a Competing Transaction which was not obtained in violation of Section 6.04 and the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee (to the extent it is within the authority of the Special Committee) determines in its good faith judgment (after consultation with its financial advisor and outside legal counsel), that such proposal or offer constitutes a Superior Proposal and failure to make a Change in the Company Recommendation with respect to such Superior Proposal would be inconsistent with its fiduciary duties under applicable Law, the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee (to the extent it is within the authority of the Special Committee) may effect a Change in the Company Recommendation with respect to such Superior Proposal and/or authorize the Company to terminate this Agreement in accordance with Section 8.03(c), but only (i) if the Company shall have complied with the requirements of Section 6.04(a) and Section 6.04(b) with respect to such proposal or offer; (ii) after (A) providing at least five (5) Business Days’ (the “Superior Proposal Notice Period”) written notice to Parent (a “Notice of Superior Proposal”) advising Parent that the Company Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (and providing any proposed agreements related thereto), identifying the person making such Superior Proposal and indicating that the Company Board or the Special Committee (to the extent it is within the authority of the Special Committee), as applicable, intends to effect a Change in the Company Recommendation and/or authorize the Company to terminate this Agreement in accordance with Section 8.03(c), it being understood that the Notice of Superior Proposal or any amendment or update thereto or the determination to so deliver such notice shall not constitute a Change in the Company Recommendation, (B) negotiating with and causing its financial and legal advisors to negotiate with Parent, Merger Sub and their respective Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement and the Equity Financing, so that such Third Party proposal or offer would cease to constitute a Superior Proposal, and (C) permitting Parent and its Representatives to make a presentation to the Company Board and the Special Committee regarding this Agreement, the Equity Financing and any adjustments with respect thereto (to the extent Parent desires to make such presentation); provided, that any material modifications to such Third Party proposal or offer that the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee (to the extent it is within the authority of the Special Committee) has determined to be a Superior Proposal shall be deemed a new Superior Proposal and the Company shall be required to again comply with the requirements of this Section 6.04(d); provided, further, that with respect to such new Superior Proposal, the Superior Proposal Notice Period shall be deemed to be a three (3) Business Day period rather than the five (5) Business Day period first described above; and (iii) following the end of such five (5) Business Day period or three (3) Business Day period (as applicable), the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee (to the extent it is within the authority of the Special Committee) shall have determined, in its good faith judgment (after consultation with its financial advisor and outside legal counsel), that taking into account any changes to this Agreement and the Equity Financing proposed by Parent and Merger Sub in response to the Notice of Superior Proposal or otherwise, that the proposal or offer with respect to the Competing Transaction giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal.
(e) Notwithstanding anything to the contrary set forth in this Agreement, from the date hereof and until the receipt of the Requisite Company Vote, if an Intervening Event has occurred and the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee (to the extent it is within the authority of the Special Committee) determines in its good faith judgment (after receiving written advice of outside legal counsel engaged by the Special Committee, which advice shall be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law of the Cayman Islands)) that the failure to take such action would reasonably be expected to breach its fiduciary duties under applicable Law, the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee (to the extent it is within the authority of the Special Committee) may effect a Change in the Company Recommendation; provided, that the Company Board or the Special Committee, as applicable, shall not make such Change in the Company Recommendation unless the Company has (i) provided to Parent at least five (5) Business Days’ prior written notice that it intends to take such action and specifying in reasonable detail the facts underlying the decision by the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee (to the extent it is within the authority of the Special Committee), as applicable, to take such action and (ii) during such five (5) Business Day period, if requested by Parent, engaged in good faith negotiations with Parent to amend this Agreement in such a manner that obviates the need for such Change in the Company Recommendation.
(f) Nothing contained in this Section 6.05.6.04 shall be deemed to prohibit the Company, the Company Board or the Special Committee from (i) complying with its disclosure obligations under U.S. federal or state or non-U.S. Law with regard to a Competing Transaction or proposal therefor, including taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act (or any similar communication to shareholders in connection with the making or amendment of a tender offer or exchange offer); provided, that any such disclosure (other than a “stop, look and listen” communication of the type contemplated by Rule 14d-9(f) under the Exchange Act or a statement that the Company Board or Special Committee has received and is currently evaluating such Competing Transaction) that does not include an express rejection of any applicable Competing Transaction or an express reaffirmation of its recommendation in favor of the transactions contempl
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Zhang Ray Ruiping), Agreement and Plan of Merger (eHi Car Services LTD)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary of its Subsidiaries shall, and that it shall use its reasonable best efforts to cause its and each Company Subsidiary's its Subsidiaries’ Representatives not to, directly or indirectly: (i) encourage, initiate, solicitsolicit or take any other action designed to, encourage or otherwise which could reasonably be expected to, facilitate an Acquisition Proposal or the making, submission or announcement of, any Acquisition Proposal, (including by way of furnishing informationii) participate or engage in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, or take any other action to facilitate any inquiries or the making of any proposal, proposal that constitutes or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could may reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not lead to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, engage in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore person with respect to any Acquisition Proposal, except to notify such person as to the existence of these provisions, (iv) approve, endorse or recommend any Acquisition Proposal with respect to it, or (v) enter into any letter of intent or similar document or any agreement, commitment or understanding contemplating or otherwise relating to any Acquisition Proposal or a transaction contemplated thereby; provided, that so long as there has been no breach of this Section 5.5(a), the Company may, in response to an Acquisition Proposal that was not solicited after the date hereof and otherwise in compliance with the obligations under Section 5.5(c), participate in discussions or negotiations with, request clarifications from, or furnish information to, any person which makes such Acquisition Proposal if (A) such action is taken subject to a confidentiality agreement containing customary terms and conditions; provided, that if such confidentiality agreement contains provisions that are less restrictive than the comparable provisions of the Confidentiality Agreement, or omits restrictive provisions contained in the Confidentiality Agreement, then the Confidentiality Agreement shall be deemed to be automatically amended to contain in substitution for such comparable provisions such less restrictive provisions, or to omit such restrictive provisions, as the case may be, and in connection with the foregoing, the Company agrees not to waive any of the provisions in any such confidentiality agreement without waiving the similar provisions in the Confidentiality Agreement to the same extent, (B) the Company Board reasonably determines in good faith, after consultation with outside legal counsel (which may be its current outside legal counsel) and financial advisor (which may be its current outside financial advisor), that such Acquisition Proposal could reasonably be expected to lead to a Superior Proposal and (C) the Company Board reasonably determines in good faith, after consultation with outside legal counsel (which may be its current outside legal counsel), that failure to take such actions would constitute a breach of fiduciary duties under applicable Law. The Company agrees that it shall keep IHK informedimmediately terminate, on a current basisand shall cause its Subsidiaries and use its reasonable best efforts to cause its and its Subsidiaries’ Representatives to immediately terminate, of the status and terms of any such proposals or offers and the status of any such all discussions or negotiations, if any, with any third party with respect to, or any that could reasonably be expected to lead to an Acquisition Proposal. The Company shall immediately request that each person which has heretofore executed a confidentiality agreement with it or any of its Subsidiaries or any of its or its Subsidiaries’ Representatives with respect to such person’s consideration of a possible Acquisition Proposal to immediately return or destroy (which destruction shall be certified in writing by such person to the Company) all confidential information heretofore furnished to such person or its Representatives.
(b) Neither the Company Board nor any committee thereof shall (i) withdraw, modify or amend, or propose to withdraw, modify or amend, in a manner adverse to Parent, the Company Recommendation or (ii) resolve to do any of the foregoing; provided, that the Company Board may withdraw, modify or amend the Company Recommendation if, following receipt of a Superior Proposal (A) the Company has complied with its obligations under this Section 5.5, (B) the Company Board reasonably determines in good faith, after consultation with outside legal counsel (which may be its current outside legal counsel), that failure to take such actions would constitute a breach of fiduciary duties under applicable Law and (C) prior to taking such actions, the Company Board shall have given Parent at least five (5) business days notice of its intention to take such action and the opportunity to meet with the Company and its outside counsel and financial advisor.
(c) In addition to the obligations set forth in Section 5.5(a), the Company shall as promptly as practicable (and in any event within one (1) business day) advise Parent of any request for information with respect to any Acquisition Proposal or of any Acquisition Proposal, or any inquiry, proposal, discussions or negotiation with respect to any Acquisition Proposal, the terms and conditions of such request, Acquisition Proposal, inquiry, proposal, discussion or negotiation, and the Company shall, within one (1) business day of the receipt thereof, promptly provide to Parent copies of any written materials received in connection with any of the foregoing, and the identity of the person making any such Acquisition Proposal or such request, inquiry or proposal or with whom any discussions or negotiations are taking place. The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative shall keep Parent reasonably informed of the status and material details (including material amendments or proposed amendments) with respect to the information previously provided by the Company or in connection with an Acquisition Proposal, and shall provide to Parent within one (1) business day of receipt thereof all written materials received by it with respect thereto. The Company shall promptly provide to Parent any non-public information concerning it provided to any other person in connection with any Acquisition Proposal, which was not previously provided to Parent. With respect to any Acquisition Proposal that constitutes a Superior Proposal, for a period of five (5) business days after such determination, the Company Subsidiary of shall, if requested by Parent, negotiate in good faith to revise this Agreement so that Parent has the obligations undertaken opportunity to make an offer that the Company Board may determine in its good faith judgment to be at least as favorable to the Company’s stockholders as such Superior Proposal.
(d) Nothing contained in this Section 6.05Agreement shall be deemed to restrict the parties from complying with Rules 14d-9 or 14e-2 under the Exchange Act.
Appears in 2 contracts
Sources: Merger Agreement (Zhone Technologies Inc), Merger Agreement (Sorrento Networks Corp)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary of its subsidiaries nor any of the officers and directors of it or its subsidiaries shall, and that it shall direct and cause its and each Company Subsidiary's Representatives its subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its subsidiaries) not to, directly or indirectly, initiate, solicit, knowingly encourage or otherwise facilitate (including by way of furnishing information) any inquiries or the making of any proposal, proposal or offer with respect to (i) a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involvinginvolving it or any of its subsidiaries, or (ii) any purchase or sale of all or any significant portion of the assets or 2015% or more of the equity securities of, the Company of it or any Company Subsidiary that, in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement its subsidiaries (any such proposal or offer being hereinafter referred to as an "Acquisition ProposalACQUISITION PROPOSAL"). The Company further , and agrees that neither it nor any Company Subsidiary of its subsidiaries nor any of the officers and directors of it or its subsidiaries shall, and that it shall direct and cause its and each Company Subsidiary's Representatives its subsidiaries' employees, agents and representatives (including any investment banker, attorney or accountant retained by it or any of its subsidiaries) not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person person relating to an Acquisition Proposal Proposal, or engage in any negotiations concerning an Acquisition Proposal, or otherwise knowingly facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided. Notwithstanding the foregoing, however, that nothing contained in this Agreement shall prevent the Company or the Company's its Board of Directors from shall be permitted to (iA) complying to the extent applicable, comply with Rule 14e-2 14e-2(a) promulgated under the Exchange Act with regard to an Acquisition Proposal; , or (iiB) engaging engage in any discussions or negotiations with, or providing provide any information to, any Person person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock person, if and only to the extent that, in any such the case as is of the actions referred to in clause (ii) or (iiiB), (Ai) the Company's stockholders meeting relating to the adoption of this Agreement by the stockholders of the Company shall not have occurred, (ii) such Acquisition Proposal constitutes a Superior Proposal and was not solicited by it and did not otherwise result from a breach of this Section 5.4, (iii) the Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with faith, based on the advice of its outside legal counsel advisors, that in light of this Superior Proposal, if the Company fails to participate in such action is necessary for discussions or negotiations with, or provide such information to, the person making such Superior Proposal, it to act would be in a manner consistent with violation of its fiduciary duties under applicable law, (Civ) prior to providing any information or data to any Person person in connection with a Superior an Acquisition Proposal by any such Personperson, the Company's Board of Directors of the Company receives from such Person person an executed confidentiality agreement on terms substantially similar no less favorable to the Company than those contained in the Confidentiality Agreement and (Dv) prior to providing any information or data to any Person person or entering into discussions or negotiations with any Personperson, the Company's Board of Directors of the Company notifies IHK Parent promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives its representatives indicating, in connection with such notice, the name of such Person person and the material terms and conditions of any proposals or offers. The Company agrees that it will keep Parent informed reasonably promptly of any material change in the terms of any such proposals or offers and will notify Parent 24 hours in advance before an agreement is reached. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition ProposalProposal or similar transaction or arrangement. The Company agrees that it shall keep IHK informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiations.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative the individuals or entities referred to in the first sentence of the Company or any Company Subsidiary this Section 5.4 of the obligations undertaken in this Section 6.05.5.4. Nothing in this Section 5.4 shall (x) permit the Company to terminate this Agreement (except as specifically provided in Article VII hereof) or (y) affect any other obligation of the Company under this Agreement. For purposes of this Section 5.4, "SUPERIOR
Appears in 2 contracts
Sources: Merger Agreement (About Com Inc), Merger Agreement (About Com Inc)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary shallwill not, directly or indirectly, and that it shall will cause its subsidiaries and each Company Subsidiary's Representatives affiliates, and its and their respective officers, directors, employees, investment bankers, attorneys, accountants and other advisers or representatives (collectively, the "Representatives") not to, directly or indirectly, initiate, solicit, initiate or encourage or otherwise facilitate (including by way means of furnishing non-public information) ), or take any other action to facilitate, any inquiries or the making of any proposalproposal or offer that constitutes, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could may reasonably be expected to interfere lead to, any Competing Transaction, or enter into or maintain or continue discussions or negotiate with the completion any Person in furtherance of the Merger such inquiries or the other transactions contemplated to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, or authorize or permit any of its subsidiaries or any Representative retained by this Agreement (it to take any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shallaction.
(b) Notwithstanding the foregoing, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations withCompany may, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any offer or proposal with respect to a proposed Superior Proposal, pursuant to a confidentiality agreement containing customary terms and conditions, furnish confidential or non-public information to a financially capable Person (a "Potential Acquirer") and negotiate with such Person; Potential Acquirer if the Board of Directors of the Company, after consulting with its outside legal counsel, determines in good faith that the failure to provide such confidential or (iii) recommending non-public information to or negotiate with such an unsolicited bona fide written Acquisition Proposal Potential Acquirer would be reasonably likely to constitute a breach of its fiduciary duty to the holders of Company Common Stock if Company's stockholders, and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable may recommend to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel stockholders that they accept such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, or otherwise take and disclose to the Company's Board stockholders a position contemplated by Rule 14e-2 under the Exchange Act. It is understood and agreed that negotiations and other activities conducted in accordance with this Section 6.5(b) shall not constitute a violation of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained Section 6.5(a).
(c) The Company shall promptly, but in any event within one day after receiving notice thereof, advise the Confidentiality Agreement and (D) prior to providing Investors in writing of any information Competing Transaction or data to any Person or entering into discussions or negotiations with inquiry regarding the making of a Competing Transaction, including any Personrequest for information, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the material terms and conditions of any proposals such request, Competing Transaction or offersinquiry and the identity of the Person making such request, Competing Transaction or inquiry. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, the Investors reasonably informed of the status and terms details, including any amendments or proposed amendments, of any such proposals request, Competing Transaction or offers and the status of any such discussions or negotiationsinquiry.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken in this Section 6.05.
Appears in 2 contracts
Sources: Subscription Agreement (Sanders Don A), Subscription Agreement (Sutherland Yoest David)
No Solicitation of Transactions. (a) The Each of Pubco and the Company agrees that agree that, from the date of this Agreement until the earlier of (x) the Closing Date or (y) the date on which this Agreement is terminated (the “Pre-Closing Period”), neither it nor any Company Subsidiary of its Subsidiaries shall, and that nor shall it shall cause or any of its and each Company Subsidiary's Subsidiaries authorize any of its Representatives not to, directly or indirectly, initiate, : (i) solicit, encourage initiate or otherwise knowingly encourage, induce or facilitate (including by way of furnishing information) any inquiries the communication, making, submission or the making announcement of any proposal, Acquisition Proposal or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution Acquisition Inquiry or similar transaction involving, or take any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, action that could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating lead to an Acquisition Proposal or engage Acquisition Inquiry; (ii) furnish any non-public information regarding such party to any Person in any negotiations concerning an Acquisition Proposal, connection with or otherwise facilitate any effort or attempt in response to make or implement an Acquisition Proposal or accept an Acquisition ProposalInquiry; (iii) engage in discussions or negotiations with any Person with respect to any Acquisition Proposal or Acquisition Inquiry; (iv) approve, endorse or recommend any Acquisition Proposal (subject to Section 7.01(e)); (v) execute or enter into any letter of intent or any Contract contemplating or otherwise relating to any Acquisition Transaction; or (vi) publicly propose to do any of the foregoing; provided, however, that nothing that, notwithstanding anything contained in this Agreement shall prevent Section 7.02(a) (but subject to compliance with this Section 7.02(a)) or any other provision of this Agreement, prior to the Company Pubco Stockholder Approval at the Special Meeting, Pubco may furnish non-public information to, enter into or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging engage in any discussions or negotiations with, execute or providing enter into any information toletter of intent or any Contract contemplating or otherwise relating to any Acquisition Transaction, and publicly propose to do any of the foregoing with any Person in response to an a bona fide, unsolicited bona fide written Acquisition Proposal or Acquisition Inquiry by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to Person which the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Pubco Board of Directors concludes determines in good faith (faith, after consultation with its outside financial advisors and outside legal counsel and financial advisors) that such Acquisition Proposal counsel, constitutes, or is reasonably capable likely to result in, a Superior Offer if: (A) neither Pubco nor any of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result its Representative shall have breached this Section 7.02(a) in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), material respect; (B) the Company's Pubco Board of Directors determines in good faith faith, after consultation with its outside legal counsel counsel, that the failure to take such action is necessary for it to act in a manner consistent would be inconsistent with its fiduciary duties under applicable law, Law; (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors Pubco receives from such Person an executed confidentiality agreement on terms substantially similar containing provisions (including nondisclosure provisions, use restrictions, non-solicitation provisions and no hire provisions) at least as favorable to Pubco as those contained in the Confidentiality Agreement Agreement; and (D) prior substantially contemporaneously with furnishing any such nonpublic information to providing such Person, Pubco furnishes such nonpublic information to the Company (to the extent such information has not been previously furnished by Pubco to the Company). Without limiting the generality of the foregoing, each of the Company and Pubco acknowledges and agrees that, in the event any Representative of such party (whether or not such Representative is purporting to act on behalf of such party) takes any action that, if taken by such party, would constitute a breach of this Section 7.02(a) by such party, the taking of such action by such Representative shall be deemed to constitute a breach of this Section 7.02(a) by such party for purposes of this Agreement.
(b) If any party receives an Acquisition Proposal or Acquisition Inquiry at any time during the Pre-Closing Period, then such party shall promptly (and in no event later than twenty-four hours after such party becomes aware of such Acquisition Proposal or Acquisition Inquiry) advise the other party orally and in writing of such Acquisition Proposal or Acquisition Inquiry (including, but not limited to, the identity of the Person making or submitting such Acquisition Proposal or Acquisition Inquiry and the terms thereof) and shall provide a copy of any written Acquisition Proposal submitted by such Person and any related financing commitments. The Company shall also provide Pubco confirmation in writing that the Company has advised, in writing, the Person making such Acquisition Proposal or Acquisition Inquiry to the Company (or the Company’s Representative) that the Company and its Representatives are contractually prohibited from furnishing any non-public information or data regarding the Company to any Person in connection with or entering into in response to an Acquisition Proposal or Acquisition Inquiry and from engaging in discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it Proposal or Acquisition Inquiry.
(c) Pubco shall keep IHK informed, on a current basis, of the Company reasonably informed with respect to the status and terms of any such proposals Acquisition Proposal or offers Acquisition Inquiry and shall promptly (and in no event later than twenty-four hours after Pubco’s receipt thereof) inform the status Company of any such discussions material modification thereto. In addition to the foregoing, Pubco shall provide the Company with at least twenty-four hours written notice of (i) a meeting of the Pubco Board at which the Pubco Board is reasonably expected to consider an Acquisition Proposal or negotiationsAcquisition Inquiry it has received and (ii) the entry by Pubco into a definitive transaction agreement relating to any Acquisition Transaction.
(bd) The Company agrees Each party shall immediately cease and terminate, and cause its Representative to terminate, any existing discussions, negotiations and communications with any Person that it will take the necessary steps relate to promptly inform each Company Subsidiary and each Representative any Acquisition Proposal or Acquisition Inquiry as of the Company date of this Agreement and request the destruction or return of any Company Subsidiary of the obligations undertaken in this Section 6.05nonpublic information provided to such Person.
Appears in 2 contracts
Sources: Merger Agreement (Greenidge Generation Holdings Inc.), Merger Agreement (Support.com, Inc.)
No Solicitation of Transactions. (a) The Company agrees Until the earlier of the Closing and termination of this Agreement pursuant to Article VIII, the Sellers agree that neither it nor any Company Subsidiary shallthey shall not, and that it shall cause the Company, any of its Subsidiaries and each Company Subsidiary's their respective Representatives (including any investment banker, attorney or accountant retained by any Group Company) not to, in each case, directly or indirectly, initiate, (i) solicit, encourage initiate or otherwise facilitate (including by way of furnishing information) knowingly encourage, enter into, maintain or continue discussions or negotiations with any Third Party in respect of, or take any other action to knowingly facilitate, any inquiries or the making of any proposalproposal or offer (including any proposal or offer to its shareholders) that constitutes, or offer that in the Sellers’ good faith judgment could reasonably be expected to lead to, any purchase, merger or acquisition of the Company’s or any Group Company’s Equity Securities, (ii) agree to, approve, endorse, recommend or consummate any purchase, merger or acquisition of the Company’s or any Group Company’s Equity Securities or enter into any letter of intent or Contract or commitment contemplating or otherwise relating to any purchase, merger or acquisition of the Company’s or any Group Company’s Equity Securities, (iii) grant any waiver, amendment or release under any standstill, confidentiality or similar agreement or Takeover Statute (and the Sellers shall promptly take all action necessary to terminate or cause to be terminated any such waiver previously granted with respect to a mergerany provision of any such confidentiality, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution standstill or similar transaction involvingagreement or Takeover Statute and to enforce each such confidentiality, standstill and similar agreement), (iv) engage in any act or inaction that will materially impair or is reasonably expected to materially impair the value of the Group Companies, (v) unilaterally terminate or withdraw from this Agreement and the Transactions, or seek such termination or withdrawal other than pursuant to Section 8.03, or (vi) authorize or permit any purchase or sale of all or any significant portion of the assets or 20% or more Representatives of the equity securities ofSellers, the Company or any Company Subsidiary that, of its Subsidiaries to take any action set forth in any such case, could reasonably be expected to interfere with the completion clauses (i) – (v) of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal")Section 6.02. The Company further agrees that neither it nor any Company Subsidiary shallSellers shall not, and that it shall cause the Company and its and each Company Subsidiary's Representatives Subsidiaries not to, directly or indirectly, have enter into any discussion confidentiality agreement with or provide any confidential information or data Third Party subsequent to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in the date of this Agreement shall prevent which prohibits the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any such information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiationsPurchaser.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken in this Section 6.05.
Appears in 2 contracts
Sources: Share Purchase Agreement (Renren Inc.), Share Purchase Agreement (Kaixin Auto Holdings)
No Solicitation of Transactions. (a) The From the date hereof until the earlier of termination of this Agreement or the Closing, none of the Company agrees that neither it nor or any Company Subsidiary shall, and that it shall cause of its and each Company Subsidiary's Representatives not toSubsidiaries will, directly or indirectly, whether through any director, officer, employee, financial advisor, legal counsel, accountant, other agent or representative (as used in this Section 7.3, "REPRESENTATIVES") or otherwise, (A) initiate, solicitsolicit or encourage, encourage or otherwise take any other action to facilitate (including by way of furnishing information) any inquiries or the making of any proposal with respect to, or (B) except to the extent required in the exercise of the fiduciary duties of the Board of Directors of the Company or any of its Subsidiaries, under applicable law as advised by independent counsel in connection with an unsolicited proposal, engage or participate in negotiations concerning, provide any nonpublic information or data to, or have any discussions with, any person other than a party hereto or their representatives relating to, any (i) acquisition, (ii) tender offer with respect to (including a self-tender offer), (iii) exchange offer, (iv) merger, reorganization, share exchange, (v) consolidation, (vi) acquisition of beneficial ownership of (or the right to vote securities representing) 10% or more of the total voting power of such entity or any of its Subsidiaries, (vii) dissolution, (viii) business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any (ix) purchase or sale of all or any significant portion of the assets or 20% or more any division of the equity securities of, the Company (or any Company Subsidiary thatequity interest in) such entity, in or (x) any such case, could reasonably be expected to interfere with similar transaction other than the completion of the Merger or the other transactions stock purchase contemplated by this Agreement (any such proposal proposals, announcements, or offer transactions being hereinafter referred to as an "Acquisition ProposalACQUISITION PROPOSALS"). The Company further agrees that neither it nor any Company Subsidiary shallNotwithstanding the foregoing, and that it this Section 7.3 shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent prohibit the Company or the Company's Board of Directors of the Company from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard furnishing information to an Acquisition Proposal; (ii) engaging in any or entering into discussions or negotiations with, any person or providing any information to, any Person in response to entity that makes an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if Proposal, if, and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (Aa) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary so required for it the Board of Directors to act in a manner consistent comply with its fiduciary duties under applicable lawto shareholders imposed by law and the Board has been so advised in writing (with a copy furnished to Delta) by independent, outside counsel, in its judgment and opinion, as being so required, (Cb) prior to providing any furnishing information to, or data to any Person in connection with a Superior Proposal by any entering into discussions and negotiations with, such Personperson or entity, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar Company provides written notice to those contained in Delta to the Confidentiality Agreement and (D) prior to providing any effect that it is furnishing information or data to any Person to, or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, such person or entity, and (c) the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, keeps Delta informed of the status and terms of any such proposals or offers and the status of all material information with respect to any such discussions or negotiations.
. Nothing in this Section 7.3 shall (bx) The permit the Company agrees to terminate this Agreement (except as specifically provided in Article IX hereof), (y) permit the Company or any of its Subsidiaries to enter into any Agreement with respect to an Acquisition Proposal for as long as this Agreement remains in effect (it being agreed that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative for as long as this Agreement remains in effect, none of the Company or any Company Subsidiary of its Subsidiaries shall enter into any Agreement with any person that provides for, or in any way facilitates, an Acquisition Proposal), or (z) affect any other obligation of the obligations undertaken in Company under this Section 6.05Agreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Delta Galil Industries LTD), Stock Purchase Agreement (Delta Galil Industries LTD)
No Solicitation of Transactions. (a) The Each of the Company agrees that neither it nor any Company Subsidiary shalland Parent will not, directly or indirectly, and that it shall will cause its and each Company Subsidiary's Representatives officers, directors, employees, subsidiaries, affiliates, agents or advisors or other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Committee of its Board of Directors) not to, directly or indirectly, initiate, take any action to (i) solicit, initiate or encourage or otherwise facilitate (including by way of furnishing nonpublic information) ), or take any other action designed to facilitate, directly or indirectly, any inquiries or the making of any proposalproposal or offer (including, without limitation, any proposal or offer to its shareholders) that constitutes, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could may reasonably be expected to interfere lead to, any Competing Transaction (as defined below), (ii) enter into or maintain or participate in any way in discussions or negotiate with the completion any person or entity in furtherance of such inquiries or to obtain a Competing Transaction, or (iii) agree to or approve, recommend or endorse any Competing Transaction, or authorize or permit any of the Merger officers, directors, employees or affiliates of such party or any of its subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by such party or any of such party's subsidiaries or any Committee of the other transactions contemplated by this Agreement (Board of Directors of such party, to take any such proposal or offer being hereinafter referred to as an "Acquisition Proposal")action. The Company further agrees that neither it nor shall notify Parent and Parent shall notify the Company promptly if any Company Subsidiary shallproposal or offer, and that it shall cause its or any inquiry or contact with any person with respect thereto, regarding a Competing Transaction is made and each shall provide the other with the identity of the party making such proposal and with a summary of the terms thereof and each shall keep the other reasonably apprised of the status thereof. Each of the Company Subsidiary's Representatives and Parent agrees not to, directly or indirectly, have to release any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposalthird party from, or otherwise facilitate waive any effort provision of, any confidentiality or attempt standstill agreement to make or implement an Acquisition Proposal or accept an Acquisition Proposal; providedwhich it is a party.
(b) Notwithstanding anything to the contrary in Section 6.4(a), however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under of each of the Exchange Act with regard Company and Parent may cause Parent or the Company to an Acquisition Proposal; (ii) engaging furnish, pursuant to a customary confidentiality agreement, information to, and may participate in any discussions or negotiations with, any person that, unsolicited by it after the day of the signing of this Agreement, has submitted a written proposal to it relating to a Competing Transaction which was not solicited by it or providing any information towhich did not otherwise result from a breach of Section 6.4(a), any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) that the Company's Board of Directors concludes in good faith the Company or Parent (after consultation with its legal counsel and financial advisorsas applicable) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action it is necessary for it to act in do so to avoid a manner consistent with breach of its fiduciary duties to the Company or its shareholders or Parent or its shareholders under applicable law, (C) prior to providing any Laws. Such furnishing of information or data to any Person and participation in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations in accordance with this Section 6.4(b) shall not constitute a breach of this Agreement by such party; provided that neither the Company nor Parent shall have any Personright to terminate this Agreement or otherwise cease performance of its obligations hereunder except pursuant to Article VIII hereof.
(c) Subject to Section 6.1(b) and Section 6.2, nothing contained in this Section 6.4 shall prohibit either party hereto from taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a) promulgated under the Company's Exchange Act or from making any disclosure to its shareholders if, in the good faith judgment of its Board of Directors notifies IHK promptly Directors, failure so to disclose would result in a violation of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore applicable Law.
(d) A "Competing Transaction" with respect to the Company or Parent, respectively, means any Acquisition Proposal. The of the following involving the Company agrees that it shall keep IHK informedor Parent, on respectively, other than the Merger: any proposed (i) merger, consolidation, share exchange, business combination or other similar transaction involving such party, (ii) sale, lease, exchange, transfer or other disposition directly or indirectly of 50% or more of the consolidated assets of such party and its subsidiaries, taken as a current basiswhole, or (iii) transaction in which any person would acquire beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act) of, or the right to acquire beneficial ownership, of the status and terms (whether itself, as a member of any "group" (as such proposals term is defined under the Exchange Act) or offers and otherwise), 50% or more of the status of any such discussions or negotiations.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative outstanding voting capital stock of the Company or any Company Subsidiary of the obligations undertaken in this Section 6.05Parent, respectively.
Appears in 2 contracts
Sources: Merger Agreement (Wausau Paper Mills Co), Merger Agreement (Mosinee Paper Corp)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary shall, and that it Target shall cause its and each Company Subsidiary's Representatives not tonot, directly or indirectly, initiatethrough any officer, director, employee, agent or otherwise and shall not permit any Subsidiary or any officer, director, employee or agent to, solicit, initiate or encourage or otherwise facilitate (including by way of furnishing information) any inquiries or the making submission of any proposalproposal or offer from any person relating to any acquisition or purchase of all or any material portion of the assets of, or offer with respect to a any equity interest in, the Target or any Subsidiary or any merger, reorganizationconsolidation, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution combination or other similar transaction involving, with the Target or any purchase Subsidiary (a "BUSINESS COMBINATION PROPOSAL") or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage participate in any negotiations concerning an Acquisition Proposalregarding, or furnish or make available to any other person any information with respect to, or otherwise cooperate in any way with, or assist or participate in, facilitate or encourage, any effort or attempt by any other person to make do or implement an Acquisition Proposal seek or accept an Acquisition Proposalprovide access to the properties, books or records of Target or any Subsidiary to any person in connection with, any of the foregoing; providedPROVIDED, howeverHOWEVER, that nothing contained in this Agreement Section 6.05 shall prevent prohibit the Company or the Company's Board of Directors Target from (i) complying with Rule 14e-2 promulgated and Rule 14d-9 under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any or furnishing information to, or entering into discussions or negotiations with, with or providing access to the properties, books or records of Target or any information to, Subsidiary to any Person person in response to connection with an unsolicited bona fide written Acquisition Business Combination Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to person received by the holders Target after the date of Company Common Stock if the Agreement, if, and only to the extent that, (a) a majority of the disinterested members of the Target's Board of Directors, after consultation with Target's independent financial advisor and based on the advice of outside counsel, determines in any good faith that such case as action is referred to required in clause (ii) or (iii), (A) order for the CompanyTarget's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable not to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with breach its fiduciary duties under applicable law, to shareholders imposed by law and (Cb) prior to providing any furnishing such information to, or entering into discussions or negotiations with, such person, the Target (i) gives Acquiror as promptly as practicable prior written notice of the Target's intention to furnish such information or data to any Person in connection with a Superior Proposal by any begin such Persondiscussions, the Company's Board identity of Directors such person and the material terms of such Business Combination Proposal and (ii) receives from such Person person an executed confidentiality agreement on terms substantially similar no less favorable to the Target than those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, Agreement. The Target shall keep Acquiror informed of the Company's Board material details of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested Business Combination Proposal or any significant indication of interest in making any Business Combination Proposal as promptly as practicable. The Target agrees not to release any third party from, or waive any such discussions or negotiations sought to be initiated or continued with, the Companyprovision of, any Company Subsidiary confidentiality or any of their Representatives indicating, in connection with such notice, standstill agreement to which the name of such Person and the terms and conditions of any proposals or offersTarget is a party. The Company agrees that it will Target immediately shall cease and cause to be terminated any all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiationsforegoing.
(b) The Company agrees that it will take Neither the necessary steps Board of Directors of Target nor any committee thereof shall (i) withdraw or modify, or propose to promptly inform each Company Subsidiary and each Representative withdraw or modify, in a manner adverse to Acquiror or Acquiror Sub, the approval or recommendation by such Board of Directors or any such committee of the Company Offer, this Agreement or the Merger or (ii) approve or recommend, or propose to approve or recommend, any Company Subsidiary Business Combination Proposal. Notwithstanding the foregoing, the Board of Directors of Target, to the extent required by the fiduciary obligations thereof, as determined in good faith by a majority of the obligations undertaken disinterested members thereof based on the advice of outside counsel, may approve or recommend (and, in connection therewith, withdraw or modify its approval or recommendation of the Offer, this Section 6.05Agreement and the Merger) a Superior Proposal. For purposes of this Agreement, "SUPERIOR PROPOSAL" means a bona fide Business Combination Proposal made by a third party to acquire, directly or indirectly, more than fifty percent 50% of the Shares then outstanding or all or a material portion of the assets of Target and its subsidiaries and otherwise on terms that a majority of the disinterested members of the Board of Directors of Target determines in its good faith judgment (after consultation with the Target's independent financial advisor) to be more favorable to the holders of Shares than the Offer and the Merger from a financial perspective and for which financing, to the extent required, is then committed or which, in the good faith judgment of a majority of such disinterested members (after consultation with Target's independent financial advisor, is reasonably likely to be financed by such third party.
Appears in 2 contracts
Sources: Merger Agreement (Exigent International Inc), Merger Agreement (Harris Corp /De/)
No Solicitation of Transactions. (a) The Within one (1) Business Day following the date hereof, the Company agrees that neither it nor any Company Subsidiary shall, and that it shall will cause its Subsidiaries and each its and their respective Representatives to immediately cease all discussions and negotiations with any Persons that may be ongoing with respect to an Acquisition Proposal and request such Person to promptly return or destroy all confidential information concerning the Company and its Subsidiaries made available to such Person in connection with a potential Acquisition Proposal. Except as expressly permitted by Section 5.6(b), from the date hereof until the earlier of the Effective Time or the termination of this Agreement, the Company will not and will not authorize or knowingly permit any Subsidiary's Representatives not , or Representative to, directly or indirectly, :
(i) initiate, solicit, propose, knowingly encourage or otherwise facilitate (including by way of furnishing providing information) or take any action to knowingly facilitate any inquiries or the making of any proposalproposal or offer that constitutes, or offer with respect would reasonably be expected to a mergerlead to, reorganizationan Acquisition Proposal;
(ii) engage in, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution continue or similar transaction involvingotherwise participate in any discussions (other than to refer to this Agreement) or negotiations regarding, or provide any purchase non-public information or sale of all data concerning, or any significant portion of afford access to the assets business, properties, assets, books, records or 20% or more of the equity securities personnel of, the Company or any Company Subsidiary thatof its Subsidiaries to any Person relating to, in any such case, could Acquisition Proposal or any proposal or offer that would reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred lead to as an "Acquisition Proposal"). The Company further agrees that neither it nor ;
(iii) approve, endorse, recommend or execute or enter into any Company Subsidiary shallletter of intent, and that it shall cause its and each Company Subsidiary's Representatives not toagreement in principle, directly merger agreement, acquisition agreement or indirectlyother similar agreement (which, have for the avoidance of doubt, excludes any discussion with or provide any confidential information or data to any Person Acceptable Confidentiality Agreement) relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, proposal or otherwise facilitate any effort or attempt offer that would reasonably be expected to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard lead to an Acquisition Proposal; or
(iv) resolve or agree to do any of the foregoing. The Company represents and warrants that neither it nor any of its Subsidiaries is a party to any Contract containing a standstill or similar obligation of a third party to the Company or any of its Subsidiaries that does not terminate in accordance with its terms in connection with public announcement of the execution of this Agreement.
(b) Notwithstanding anything to the contrary contained in Section 5.6(a), at any time prior to, but not after, obtaining the Company Required Vote, the Company may:
(i) provide information or afford access to the business, properties, assets, books, records, or to any personnel of the Company in response to a request therefor to a Third Party (and its Representatives and financing sources) who has made a bona fide written Acquisition Proposal after the date hereof that was not solicited in material violation of this Section 5.6 if and only if, prior to providing such information, the Company has received from such Third Party so requesting such information an executed Acceptable Confidentiality Agreement; provided that the Company shall promptly (and in any event within twenty-four (24) hours) make available to Parent any non-public information concerning the Company and its Subsidiaries that is provided to such Third Party making such Acquisition Proposal that is given such access and that was not previously made available to Parent or its Representatives; or
(ii) engaging engage or participate in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending with a Third Party who has made such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent Proposal; provided that, prior to taking any action described in any such case as is referred to in clause (iiSection 5.6(b)(i) or (iiiSection 5.6(b)(ii), (A) the Company's Company Board of Directors (or a committee thereof) shall have determined in good faith, after consultation with outside legal counsel, that failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law, and (B) the Company Board of Directors (or a committee thereof) shall have determined in good faith, based on the information then available and after consultation with its independent financial advisor and outside legal counsel, that such Acquisition Proposal either constitutes a Superior Proposal or could reasonably be expected to lead to a Superior Proposal; provided, further, that the Company and its Representatives may contact such Third Party to clarify the terms and conditions of such Acquisition Proposal prior to making any such determinations.
(c) Except as expressly provided by Section 5.6(d), Section 5.6(e) or Section 5.6(f), at any time after the date hereof, neither the Company Board of Directors nor any committee thereof nor any of the directors, whether acting in their individual capacity or as a director, shall:
(i) (A) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify), in a manner adverse to Parent or the Merger Sub, the Company Recommendation with respect to the Merger, (B) adopt, approve or recommend to the Company Common Stockholders or propose to adopt, approve or recommend to the Company Common Stockholders an Acquisition Proposal, (C) fail to make a Required Reaffirmation within seven (7) Business Days after Parent so requests in writing; provided that such failure shall not be a Company Adverse Recommendation Change if the Company shall have previously made a Required Reaffirmation on two (2) or more occasions or within the thirty (30) days immediately preceding such request; provided, further, that such failure shall not be a Company Adverse Recommendation Change if there shall not have been, at the time of such request, a publicly announced Acquisition Proposal that has not been withdrawn, (D) fail to recommend against any Acquisition Proposal subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten (10) Business Days after the commencement of such Acquisition Proposal or (E) fail to include the Company Recommendation in the Proxy Statement (any action described in clauses (A) through (E), a “Company Adverse Recommendation Change”); provided that, for the avoidance of doubt, none of (1) the determination by the Company Board of Directors (or a committee thereof) that an Acquisition Proposal constitutes a Superior Proposal, or (2) the delivery by the Company to Parent of any notice contemplated by Section 5.6(d) will in and of itself constitute a Company Adverse Recommendation Change; or
(ii) cause or permit the Company or any of its Subsidiaries to enter into any Acquisition Agreement relating to any Acquisition Proposal.
(d) Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Company Required Vote, if the Company has received a bona fide written Acquisition Proposal from any Person that is not withdrawn and that the Company Board of Directors (or a committee thereof) concludes in good faith constitutes a Superior Proposal, then (x) the Company Board of Directors (or a committee thereof) may effect a Company Adverse Recommendation Change with respect to such Superior Proposal, or (y) the Company Board of Directors (or a committee thereof) may authorize the Company to terminate this Agreement to enter into an alternative Acquisition Agreement with respect to such Superior Proposal, if and only if:
(i) the Company Board of Directors (or a committee thereof) determines in good faith, after consultation with its independent financial advisor and outside legal counsel and financial advisors) counsel, that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable failure to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent do so would be inconsistent with its fiduciary duties under applicable lawLaw;
(ii) the Company shall have complied in all material respects with its obligations under this Section 5.6 with respect to such Acquisition Proposal;
(iii) the Company shall have provided prior written notice to Parent at least three (3) Business Days in advance (the “Notice Period”), to the effect that the Company Board of Directors has received a bona fide written Acquisition Proposal that is not withdrawn and that the Company Board of Directors (Cor a committee thereof) concludes in good faith constitutes a Superior Proposal and, absent any revision to the terms and conditions of this Agreement, the Company Board of Directors (or a committee thereof) has resolved to effect a Company Adverse Recommendation Change and/or to terminate this Agreement pursuant to Section 7.1(d), which notice shall specify the basis for such Company Adverse Recommendation Change and/or termination, including the identity of the party making the Superior Proposal and the material terms thereof (including copies of all material documents relating to the Superior Proposal, including, for the avoidance of doubt, a copy of the proposed merger agreement); and
(A) prior to providing any information effecting such Company Adverse Recommendation Change or data termination, the Company shall, and shall cause their financial and legal advisors to, during the Notice Period, negotiate with Parent and its Representatives in good faith (to any Person the extent Parent desires to negotiate) to make such adjustments in connection with the terms and conditions of this Agreement, so that such Acquisition Proposal would cease to constitute a Superior Proposal; provided that in the event of any material revisions to the Acquisition Proposal by any such Person, that the Company's Company Board of Directors receives from has determined to be a Superior Proposal, the Company shall be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.6 (including this Section 5.6(d)) with respect to such Person an executed confidentiality agreement on terms substantially similar new written notice; provided, further, that the Notice Period with respect to those contained such new written notice shall expire upon the end of the second (2nd) Business Day after the delivery of such new written notice; and
(B) any such termination shall be in accordance with Section 7.1(e), including the Confidentiality Agreement and payment of the Company Termination Fee in accordance with Section 7.2(b).
(De) Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to providing any information or data to any Person or entering into discussions or negotiations with any Personobtaining the Company Required Vote, the Company's Company Board of Directors notifies IHK promptly (or a committee thereof) may, in response to a material development or change in material circumstances not relating to any Acquisition Proposal, which development or change first occurred or arose after the date hereof and the existence and material consequences of which development or change were not known by the Company Board of Directors at or prior to the date hereof (such material development or change in circumstances, an “Intervening Event”), make a Company Adverse Recommendation Change if the Company Board of Directors (or a committee thereof) determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such inquiriesIntervening Event, the failure of the Company Board of Directors to effect such a Company Adverse Recommendation Change would be inconsistent with its fiduciary duties under applicable Law; provided that the Company Board of Directors shall not be entitled to exercise its right to make a Company Adverse Recommendation Change pursuant to this Section 5.6(e) unless the Company has (i) provided to Parent at least three (3) Business Days prior written notice (unless the Intervening Event arises fewer than four (3) Business Days prior to the Stockholders Meeting, in which case such notice shall be given as promptly as practicable prior to the Stockholders Meeting), which notice shall set forth in reasonable detail the basis for such Company Adverse Recommendation Change, and (ii) during such three (3) Business Day period, if requested by Parent, engaged in good faith negotiations with Parent to make such adjustments in the terms and conditions of this Agreement in such a manner that obviates the need for a Company Adverse Recommendation Change as a result of such Intervening Event.
(f) Nothing contained in this Section 5.6 shall be deemed to prohibit the Company or the Company Board of Directors (or a committee thereof) from (i) complying with its disclosure obligations under U.S. federal or state Law with regard to an Acquisition Proposal or this Agreement, including taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) under the Exchange Act (or any similar communication to Company Common Stockholders), provided that the Company shall not effect or disclose pursuant to such rules or otherwise a position that constitutes a Company Adverse Recommendation Change unless otherwise specifically permitted by this Section 5.6, (ii) making any “stop-look-and-listen” communication or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, or (iii) informing any Person of the existence of the provisions contained in this Section 5.6.
(g) The Company agrees that it will promptly (and, in any event, within twenty-four (24) hours) notify Parent if any proposals or offers with respect to an Acquisition Proposal are received by, or any such non-public information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, the Company, any Company Subsidiary or any of their its Representatives from or by, respectively, any Third Party indicating, in connection with such notice, the name identity of the Person or group of Persons making such Person offer or proposal, and a summary of the material terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers. The Company agrees that it will immediately cease , including proposed agreements) and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it thereafter shall keep IHK Parent reasonably informed, on a current basisprompt basis or upon Parent’s reasonable request, of the status and terms of any such proposals or offers (including any amendments thereto) and any material change in the status of any such discussions or negotiations.
(bh) The Company agrees that it will take in the necessary steps to promptly inform each Company Subsidiary and each Representative event any of its Representatives takes any action that, if taken by the Company, would constitute a material breach of this Section 5.6, then the Company or any Company Subsidiary shall be deemed to be in breach of the obligations undertaken in this Section 6.055.6.
Appears in 2 contracts
Sources: Merger Agreement (Thoma Bravo Fund Xii, L.P.), Merger Agreement (Imprivata Inc)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary shall, and that it shall cause its Subsidiaries and shall direct the Company’s Representatives to, immediately cease and cause to be terminated any discussions or negotiations with any parties (other than Parent, Merger Sub and Parent’s Representatives) that may be ongoing as of the date of this Agreement with respect to an Alternative Proposal. The Company shall not, and shall cause each Company Subsidiary's of its Subsidiaries and shall direct the Company’s Representatives not to, directly or indirectly, initiate, (i) solicit, initiate or knowingly encourage or otherwise facilitate any Alternative Proposal, (including by way of furnishing informationii) enter into any inquiries agreement or the making of any proposal, or offer agreement in principle with respect to an Alternative Proposal or enter into any agreement requiring the Company to abandon, terminate or fail to consummate the Merger or breach its obligations under this Section 4.3, (iii) engage in, participate in or continue in any way any negotiations or discussions regarding, or furnish or disclose to any third party any information with respect to, any Alternative Proposal or (iv) provide access to its properties, books or records or furnish any information to any person with respect to any Alternative Proposal; provided, however, that at any time prior to obtaining the Company Stockholder Approval, in response to an unsolicited written Alternative Proposal that the Special Committee or the Company Board (A) reasonably believes is bona fide and (B) determines in good faith, after consultation with a financial advisor of nationally recognized reputation, constitutes, or could reasonably be expected to lead to, a Superior Proposal, the Company may, subject to compliance with Section 4.3(b), (x) furnish information with respect to the Company and its Subsidiaries to the person making such Alternative Proposal (and its Representatives) pursuant to an executed confidentiality agreement that contains provisions which are no less favorable to the Company than those contained in the Confidentiality Agreement; provided that all such information have previously been made available to Parent or is made available to Parent prior to, or concurrently with, the time it is provided to such person, and (y) participate in discussions with or negotiations with the person making such Alternative Proposal (and its Representatives) regarding such Alternative Proposal. Notwithstanding the foregoing, nothing in this Section 4.3(a) shall prohibit the Company from contacting and engaging in discussions with any person who has made an unsolicited bona fide written Alternative Proposal after the date of this Agreement solely for the purpose of clarifying such Alternative Proposal and any material terms, and the conditions to consummation, thereof so as to determine whether it could be reasonably expected for such Alternative Proposal to lead to a Superior Proposal.
(b) The Company shall promptly, and in any event within forty-eight (48) hours, advise Parent orally and in writing of the Company’s receipt of any Alternative Proposal or any inquiry that would reasonably be expected to lead to any Alternative Proposal, the identity of the person making any such Alternative Proposal and a copy of such Alternative Proposal (or, where no such copy is available, a written description of the principal terms and conditions thereof) prior to furnishing any information or participating in any discussions permitted by this Section 4.3 with respect to such Alternative Proposal. The Company shall (i) keep Parent reasonably informed of the status (including any change to the terms and conditions thereof) of any such Alternative Proposal and (ii) provide to Parent promptly after receipt or delivery thereof, and in any event within forty-eight (48) hours, with copies of all written correspondence and other written material sent by the Company or any Representative to, or provided to the Company or any Representative from, any person in connection with any Alternative Proposal. Promptly upon determination by the Special Committee or the Company Board that an Alternative Proposal constitutes a Superior Proposal in accordance with Section 4.3(a), the Company shall deliver to Parent a written notice advising it that the Special Committee or the Company Board has made such determination, specifying the material terms and conditions of such Superior Proposal and the identity of the person making such Superior Proposal.
(i) As used in this Agreement, “Alternative Proposal” shall mean any proposal or offer made by any person prior to the receipt of the Company Stockholder Approval (other than a proposal or offer by Parent or any of its Subsidiaries) for (i) a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidationdissolution, dissolution liquidation or similar transaction involvinginvolving the Company, or (ii) the acquisition by any purchase or sale person of all or any significant portion of the assets or 20% fifteen percent (15%) or more of the equity securities of, assets of the Company or any Company Subsidiary thatand its Subsidiaries, in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to taken as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; a whole or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders acquisition by any person of fifteen percent (15%) or more of the outstanding shares of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiationsStock.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken in this Section 6.05.
Appears in 2 contracts
Sources: Merger Agreement (American Capital Strategies LTD), Merger Agreement (Merisel Inc /De/)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary shallshall not, directly or indirectly, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, initiate, solicit, initiate or encourage or otherwise facilitate (including by way of furnishing nonpublic information) ), any inquiries or the making of any proposalproposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could may reasonably be expected to interfere lead to, any Company Competing Transaction, or enter into or maintain or continue discussions or negotiate with the completion any person in furtherance of the Merger such inquiries or the other transactions contemplated to obtain a Company Competing Transaction, or agree to or endorse any Company Competing Transaction, or authorize or permit any of Company's Representatives or subsidiaries, or any Representative retained by this Agreement (Company's subsidiaries, to take any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposalaction; provided, however, that nothing contained in this Agreement Section 6.04 shall prevent prohibit the board of directors of Company or the Company's Board of Directors from (i) from complying with Rule 14e-2 14d-9 or 14e-2(a) promulgated under the Exchange Act with regard to an Acquisition Proposal; a tender or exchange offer not made in violation of this Section 6.04 or (ii) engaging prior to receipt of the approval by the stockholders of Company of this Agreement and the Merger from providing information (subject to a confidentiality agreement at least as restrictive as the Confidentiality Agreement) in any discussions or negotiations connection with, or providing any information toand negotiating, any Person in response to an unsolicited another unsolicited, bona fide written Acquisition Proposal by any proposal regarding a Company Competing Transaction that (i) Company's board of directors shall have concluded in good faith, after considering applicable state law, on the basis of advice of independent outside counsel of nationally recognized reputation, that failure to take such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders action would not be a proper exercise of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable directors' fiduciary duties to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties stockholders under applicable law, (Cii) prior to providing if any information or data cash consideration is involved, shall not be subject to any Person financing contingency, and with respect to which Company's board of directors shall have determined in connection with the proper exercise of its fiduciary duties to Company's stockholders that the acquiring party is capable of consummating such Company Competing Transaction on the terms proposed, and (iii) Company's board of directors shall have determined (based upon the opinion of Company's independent financial advisors of nationally recognized reputation) in the proper exercise of its fiduciary duties to Company's stockholders that such Company Competing Transaction provides greater value to the stockholders of Company than 39 the Merger (and Company's independent financial advisors of nationally recognized reputation opine in writing that such Company Competing Transaction is superior from a Superior Proposal by financial point of view) (any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar Company Competing Transaction being referred to those contained in the Confidentiality Agreement and (D) prior to providing herein as a "Company Superior Proposal"). Company shall notify Parent promptly if any information proposal or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested fromoffer, or any inquiry or contact with any person with respect thereto, regarding a Company Competing Transaction is made, such discussions notice to include the identity of the person making such proposal, offer, inquiry or negotiations sought to be initiated or continued withcontact, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offerssuch Company Competing Transaction. The Company agrees that it will immediately shall cease and cause to be terminated any all existing activities, discussions or negotiations with any parties conducted heretofore with respect to a Company Competing Transaction. Company shall not release any Acquisition Proposal. The Company agrees that third party from, or waive any provision of, any confidentiality or standstill agreement to which it shall keep IHK informed, on is a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiationsparty.
(b) The Company agrees Parent shall not, directly or indirectly, and shall cause its Representatives not to, directly or indirectly, solicit, initiate or encourage (including by way of furnishing nonpublic information), any inquiries or the making of any proposal or offer (including, without limitation, any proposal or offer to its stockholders) that it will take the necessary steps constitutes, or may reasonably be expected to promptly inform each Company Subsidiary and each Representative lead to, any Parent Competing Transaction, or enter into or maintain or continue discussions or negotiate with any person in furtherance of the Company such inquiries or to obtain a Parent Competing Transaction, or agree to or endorse any Parent Competing Transaction, or authorize or permit any of Parent's Representatives or subsidiaries, or any Company Subsidiary of the obligations undertaken Representative retained by Parent's subsidiaries, to take any such action; provided, however, that nothing contained in this Section 6.056.04 shall prohibit the board of directors of Parent (i) from complying with Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act with regard to a tender or exchange offer not made in violation of this Section 6.04 or (ii) prior to receipt of the approval by the stockholders of Parent of this Agreement and the Merger from providing information (subject to a confidentiality agreement at least as restrictive as the Confidentiality Agreement) in connection with, and negotiating, another unsolicited, bona fide written proposal regarding a Parent Competing Transaction that (i) Parent's board of directors shall have concluded in good faith, after considering applicable state law, on the basis of advice of independent outside counsel of nationally recognized reputation, that failure to take such action would not be a proper exercise of the Parent's board of directors' fiduciary duties to Parent's stockholders under applicable law, (ii) if any cash consideration is involved, shall not be subject to any financing contingency, and with respect to which Parent's board of directors shall have determined in the proper exercise of its fiduciary duties to Parent's stockholders that the acquiring party is capable of consummating such Parent Competing Transaction on the terms proposed, and (iii) Parent's board of directors shall have determined (based upon the opinion of Parent's independent financial advisors of nationally recognized reputation) in the proper exercise of its fiduciary duties to Parent's stockholders that such Parent Competing Transaction provides greater value to the stockholders of Parent than the Merger (and Parent's independent financial advisors of nationally recognized reputation opine in writing that such Parent Competing Transaction is superior from a financial point of view) (any such Parent Competing Transaction being referred to herein as a "Parent Superior Proposal"). Parent shall notify Company promptly if any proposal or offer, or any inquiry or contact with any person with respect thereto, regarding a Parent Competing Transaction is made, such notice to include the identity of the person making such proposal, offer, inquiry or contact, and the terms of such Parent Competing Transaction. Parent immediately shall cease and cause to be terminated all existing discussions or negotiations with any parties conducted heretofore with respect to a Parent Competing Transaction. Parent shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party.
Appears in 2 contracts
Sources: Merger Agreement (Multex Com Inc), Agreement and Plan of Merger and Reorganization (Multex Com Inc)
No Solicitation of Transactions. (a) The Until the earlier of the Effective Time and termination of this Agreement pursuant to Article VIII, except as set forth in Section 6.04(b), the Company agrees that neither it nor any Company Subsidiary shallof its Subsidiaries, and that it shall will cause its and each Company Subsidiary's its Subsidiaries’ Representatives (including any investment banker, attorney or accountant retained by any Group Company), not to, in each case, directly or indirectly, initiate, (i) solicit, initiate or knowingly encourage or otherwise facilitate (including by way of furnishing information) nonpublic information concerning any Group Company), or take any other action to knowingly facilitate, any inquiries or the making of any proposalproposal or offer (including any proposal or offer to its shareholders) that constitutes, or could reasonably be expected to lead to, any Competing Transaction, (ii) enter into, maintain or continue discussions or negotiations with, or provide any nonpublic information concerning any Group Company to, any Third Party in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve, endorse, recommend or consummate any Competing Transaction or enter into any letter of intent or Contract (other than an Acceptable Confidentiality Agreement) or commitment contemplating or otherwise relating to any Competing Transaction, (iv) grant any waiver, amendment or release under any standstill, confidentiality or similar agreement or Takeover Statutes (and the Company shall promptly take all action necessary to terminate or cause to be terminated any such waiver previously granted with respect to a mergerany provision of any such confidentiality, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution standstill or similar transaction involvingagreement or Takeover Statute and to enforce each such confidentiality, standstill and similar agreement), or (v) authorize or permit any purchase or sale of all or any significant portion of the assets or 20% or more Representatives of the equity securities of, the Company or any of its Subsidiaries to take any action set forth in clauses (i) — (iv) of this Section 6.04(a). The Company Subsidiary shall notify Parent as promptly as practicable (and in any event within forty-eight (48) hours after the Company has knowledge thereof), orally and in writing, of any proposal or offer, or any inquiry or contact with any person, regarding a Competing Transaction or that, in any such casethe Company’s good faith judgment, could reasonably be expected to interfere with lead to a Competing Transaction, specifying (x) the completion material terms and conditions thereof (including material amendments or proposed material amendments) and providing, if applicable, copies of any written requests, proposals or offers, including proposed agreements, (y) the identity of the Merger or the other transactions contemplated by this Agreement (any party making such proposal or offer being hereinafter referred or inquiry or contact, and (z) whether the Company has any intention to as an "Acquisition Proposal")provide confidential information to such person. The Company further agrees that neither it nor shall keep Parent informed, on a reasonably current basis (and in any event within forty-eight (48) hours of the occurrence of any material changes, developments, discussions or negotiations) of the status and terms of any such proposal, offer, inquiry, contact or request and of any material changes in the status and terms of any such proposal, offer, inquiry, contact or request (including the material terms and conditions thereof). Without limiting the foregoing, the Company Subsidiary shall provide Parent with forty-eight (48) hours prior notice (or such lesser prior notice as is provided to the members of the Company Board or members of the Special Committee) of any meeting of the Company Board or Special Committee at which the Company Board or Special Committee, as applicable, is reasonably expected to consider any Competing Transaction. The Company shall, and that it shall cause its Subsidiaries and each the Representatives of the Company Subsidiary's Representatives not and its Subsidiaries to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any terminate all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposala Competing Transaction. The Company agrees shall not, and shall cause its Subsidiaries not to, enter into any confidentiality agreement with any Third Party subsequent to the date of this Agreement that it shall keep IHK informed, on a current basis, of prohibits the status and terms of any Company from providing such proposals or offers and the status of any such discussions or negotiationsinformation to Parent.
(b) The Notwithstanding anything to the contrary in Section 6.04(a), at any time prior to the receipt of the Requisite Company agrees Vote, following the receipt of an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction that was not obtained in violation of this Section 6.04, the Company and its Representatives may, with respect to such proposal or offer and acting only upon the recommendation of the Special Committee:
(i) contact the person who has made such proposal or offer (A) solely to inform such person of, and direct such person to, the obligations of the Company set forth in this Section 6.04, and/or (B) to clarify and understand the terms and conditions thereof to the extent the Special Committee shall have determined in good faith that such contact is necessary to determine whether such proposal or offer constitutes a Superior Proposal or could reasonably be expected to result in a Superior Proposal;
(ii) provide information in response to the request of the person who has made such proposal or offer, if and only if, prior to providing such information, the Company has received from the person so requesting such information an executed Acceptable Confidentiality Agreement; provided, that the Company shall concurrently make available to Parent any information concerning the Company and the Subsidiaries that is provided to any such person and that was not previously made available to Parent or its Representatives; and
(iii) engage or participate in any discussions or negotiations with the person who has made such proposal or offer; provided, that prior to taking any actions described in clause (ii) or (iii), the Company Board (acting only upon recommendation of the Special Committee) or the Special Committee (to the extent it is within the authority of the Special Committee) has (A) determined, in its good faith judgment, after consultation with its financial advisor and outside legal counsel, that such proposal or offer constitutes or could reasonably be expected to result in a Superior Proposal, (B) determined, in its good faith judgment, after consultation with its financial advisor and outside legal counsel, that, in light of such Superior Proposal, failure to take such action would be inconsistent with the fiduciary duties of the Company Board or Special Committee, as applicable, under applicable Law, and (C) provided written notice to Parent at least forty-eight (48) hours prior to taking any such action.
(c) Except as set forth in Section 6.04(d) or Section 6.04(e), neither the Company Board nor any committee thereof shall (i) (A) change, withhold, withdraw, qualify or modify (or publicly propose to change, withhold, withdraw, qualify or modify), in a manner adverse to Parent or Merger Sub, the Company Recommendation, (B) fail to include the Company Recommendation in the Proxy Statement, (C) adopt, approve or recommend, or publicly propose to adopt, approve or recommend to the shareholders of the Company, a Competing Transaction, (D) if a tender offer or exchange offer that constitutes a Competing Transaction is commenced, fail to publicly recommend against acceptance of such tender offer or exchange offer by the Company shareholders (including, for these purposes, by disclosing that it will take is taking no position with respect to the necessary steps acceptance of such tender offer or exchange offer by its shareholders, which shall constitute a failure to promptly inform each recommend against acceptance of such tender offer or exchange offer) within ten (10) Business Days after the commencement thereof; provided, that a customary “stop, look and listen” communication by the Company Subsidiary Board pursuant to Rule 14d-9(f) of the Exchange Act or a statement that the Company Board has received and each Representative is currently evaluating such Competing Transaction shall not be prohibited or be deemed to be a Change in the Company Recommendation, (E) fail to recommend against any Competing Transaction subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten (10) Business Days after the commencement of such Competing Transaction, or (F) fail to publicly reaffirm the Company Recommendation following any Competing Transaction having been publicly made, proposed or communicated (and not publicly withdrawn) within ten (10) Business Days after Parent so requests in writing; provided, that Parent may not make such request more than one time with respect to any given Competing Transaction unless there shall have been a publicly disclosed change in the consideration per Share contemplated by such Competing Transaction (any of the foregoing, a “Change in the Company Recommendation”), or (ii) cause or permit the Company or any Company Subsidiary of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other or similar document or Contract with respect to any Competing Transaction, other than an Acceptable Confidentiality Agreement entered into in compliance with Section 6.04(b) (an “Alternative Acquisition Agreement”).
(d) Notwithstanding anything to the contrary set forth in this Agreement, from the date of this Agreement and at any time prior to the receipt of the obligations undertaken Requisite Company Vote, if the Company has received a bona fide written proposal or offer with respect to a Competing Transaction which was not obtained in violation of Section 6.04 and the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee (to the extent it is within the authority of the Special Committee) determines in its good faith judgment (after consultation with its financial advisor and outside legal counsel), that such proposal or offer constitutes a Superior Proposal and failure to make a Change in the Company Recommendation with respect to such Superior Proposal would be inconsistent with its fiduciary duties under applicable Law, the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee (to the extent it is within the authority of the Special Committee) may effect a Change in the Company Recommendation with respect to such Superior Proposal and/or authorize the Company to terminate this Agreement in accordance with Section 8.03(c), but only (i) if the Company shall have complied with the requirements of Section 6.04(a) and Section 6.04(b) with respect to such proposal or offer; (ii) after (A) providing at least five (5) Business Days’ (the “Superior Proposal Notice Period”) written notice to Parent (a “Notice of Superior Proposal”) advising Parent that the Company Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (and providing any proposed agreements related thereto), identifying the person making such Superior Proposal and indicating that the Company Board or the Special Committee (to the extent it is within the authority of the Special Committee), as applicable, intends to effect a Change in the Company Recommendation and/or authorize the Company to terminate this Agreement in accordance with Section 8.03(c), it being understood that the Notice of Superior Proposal or any amendment or update thereto or the determination to so deliver such notice shall not constitute a Change in the Company Recommendation, (B) negotiating with and causing its financial and legal advisors to negotiate with Parent, Merger Sub and their respective Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement and the Equity Financing, so that such Third Party proposal or offer would cease to constitute a Superior Proposal, and (C) permitting Parent and its Representatives to make a presentation to the Company Board and the Special Committee regarding this Agreement, the Equity Financing and any adjustments with respect thereto (to the extent Parent desires to make such presentation); provided, that any material modifications to such Third Party proposal or offer that the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee (to the extent it is within the authority of the Special Committee) has determined to be a Superior Proposal shall be deemed a new Superior Proposal and the Company shall be required to again comply with the requirements of this Section 6.04(d); provided, further, that with respect to such new Superior Proposal, the Superior Proposal Notice Period shall be deemed to be a three (3) Business Day period rather than the five (5) Business Day period first described above; and (iii) following the end of such five (5) Business Day period or three (3) Business Day period (as applicable), the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee (to the extent it is within the authority of the Special Committee) shall have determined, in its good faith judgment (after consultation with its financial advisor and outside legal counsel), that taking into account any changes to this Agreement and the Equity Financing proposed by Parent and Merger Sub in response to the Notice of Superior Proposal or otherwise, that the proposal or offer with respect to the Competing Transaction giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal.
(e) Notwithstanding anything to the contrary set forth in this Agreement, from the date hereof and until the receipt of the Requisite Company Vote, if an Intervening Event has occurred and the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee (to the extent it is within the authority of the Special Committee) determines in its good faith judgment (after receiving written advice of outside legal counsel engaged by the Special Committee, which advice shall be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law of the Cayman Islands)) that the failure to take such action would reasonably be expected to breach its fiduciary duties under applicable Law, the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee (to the extent it is within the authority of the Special Committee) may effect a Change in the Company Recommendation; provided, that the Company Board or the Special Committee, as applicable, shall not make such Change in the Company Recommendation unless the Company has (i) provided to Parent at least five (5) Business Days’ prior written notice that it intends to take such action and specifying in reasonable detail the facts underlying the decision by the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee (to the extent it is within the authority of the Special Committee), as applicable, to take such action and (ii) during such five (5) Business Day period, if requested by Parent, engaged in good faith negotiations with Parent to amend this Agreement in such a manner that obviates the need for such Change in the Company Recommendation.
(f) Nothing contained in this Section 6.05.6.04 shall be deemed to prohibit the Company, the Company Board or the Special Committee from (i) complying with its disclosure obligations under U.S. federal or state or non-U.S. Law with regard to a Competing Transaction or proposal therefor, including taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act (or any similar communication to shareholders in connection with the making or amendment of a tender offer or exchange offer); provided, that any such disclosure (other than a “stop, look and listen” communication of the type contemplated by Rule 14d-9(f) under the Exchange Act or a statement that the Company Board or Special Committee has received and is currently evaluating such Competing Transaction) that does not include an express rejection of any applicable Competing Transaction or an express reaffirmation of its recommendation in favor of the transactions contempl
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Ocean Imagination L.P.), Agreement and Plan of Merger (Ctrip Investment Holding Ltd.)
No Solicitation of Transactions. (a) The Except as otherwise permitted by this Section 6.4, each of the Company and Parent agrees that neither it shall not, nor shall it permit any Company Subsidiary shallof its Subsidiaries to, and that it shall cause its and each Company Subsidiary's its Subsidiaries’ Representatives not to, directly or indirectly: (i) solicit, initiate, solicitencourage, encourage facilitate or otherwise induce any inquiry with respect to, or the making, submission or announcement of, any Acquisition Proposal (it being understood and agreed that nothing in this clause (i) shall be deemed to restrict in any manner the operation of either party’s business, or that of its subsidiaries, in the ordinary course of business), (ii) participate in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, or take any other action to facilitate (including by way of furnishing information) any inquiries or the making of any proposalproposal that constitutes, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could may reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information lead to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if it being understood and only to the extent that, agreed that nothing in any such case as is referred to in this clause (ii) shall be deemed to restrict in any manner the operation of either party’s business, or (iiithat of its Subsidiaries, in the ordinary course of business), (Aiii) the Company's Board of Directors concludes engage in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore person with respect to any Acquisition Proposal, except to notify such person as to the existence of these provisions, (iv) approve, adopt, endorse or recommend to its stockholders or any other person any Acquisition Proposal with respect to it, or (v) enter into any letter of intent or similar document or any agreement, commitment or understanding providing for or contemplating any Acquisition Proposal or a transaction contemplated thereby. The Company agrees that it shall keep IHK informedExcept as permitted by Section 6.4(c) hereof and subject to compliance with its terms, on a current basis, each of the status Company and terms of any such proposals or offers Parent shall immediately terminate, and the status of any such shall cause its Subsidiaries and its and its Subsidiaries’ Representatives to terminate immediately, all discussions or negotiations, if any, with any third party with respect to, or any that would reasonably be expected to lead to an Acquisition Proposal. Each of the Company and Parent shall immediately demand that each person which has heretofore executed a confidentiality agreement with it or any of its Affiliates (for all purposes of references to Affiliates in this sentence, excluding ▇▇▇▇ Capital, Inc. and its Affiliates and Bear, ▇▇▇▇▇▇▇ & Co. Inc. and its Affiliates) or Subsidiaries or any of its or its Affiliates’ or Subsidiaries’ Representatives since January 1, 2002 with respect to such person’s consideration of a possible Acquisition Proposal (which definition, for the purposes of this sentence only, shall substitute for each reference to “80%” and “20%” appearing therein, “75%” and “25%”, respectively) to immediately return or destroy (and have such destruction certified in writing by such person to such party hereunder) all confidential information heretofore furnished by such party or any of its Affiliates or Subsidiaries or any of its or its Affiliates’ or Subsidiaries’ Representatives to such person or any of such person’s Affiliates or Subsidiaries or any of such person’s or such person’s Affiliates’ or Subsidiaries’ Representatives with respect to such person’s consideration of a possible Acquisition Proposal.
(b) The Promptly, but in any event within twenty-four (24) hours, after receipt of any Acquisition Proposal by the Company agrees that or Parent, or any request for nonpublic information or inquiry which it will take reasonably believes would reasonably be expected to lead to an Acquisition Proposal, such party shall provide the necessary steps other party with written notice of the material terms and conditions of such Acquisition Proposal, request or inquiry, and the identity of the person or group making any such Acquisition Proposal, request or inquiry, and a copy of all written materials provided in connection with such Acquisition Proposal, request or inquiry. After receipt of the Acquisition Proposal, request or inquiry by the Company or Parent, as the case may be, it shall promptly keep the other party hereunder informed in all material respects of the status and details (including material amendments or proposed material amendments) of any such Acquisition Proposal, request or inquiry and shall promptly provide to promptly inform each it a copy of all written materials subsequently provided in connection with such Acquisition Proposal, request or inquiry.
(c) If, prior to the Company Subsidiary and each Representative Stockholders Meeting in the case of the Company or any Parent Stockholders Meeting in the case of Parent, (x) either the Company Subsidiary or Parent receives an Acquisition Proposal (for purposes of the obligations undertaken procedures set forth in this Section 6.056.4(c), any Acquisition Proposal received prior to the date hereof and which is still outstanding as of the date hereof shall be deemed to have been received immediately after execution and delivery hereof and any amendment to the terms of an Acquisition Proposal shall constitutes a new Acquisition Proposal) which constitutes a Superior Proposal, and (y) such party’s board of directors (or any committee thereof charged with such authority) has concluded in good faith, based at least in part on the advice of its outside legal counsel, that the failure to take some or all of the actions set forth in clause (1) or clause (2) below with respect to such Acquisition Proposal would reasonably be expected to result in a breach of its fiduciary obligations to its stockholders under applicable Law, such party shall promptly, but in any event in less than one (1) day following the date of such conclusion (but in any event prior to taking the actions set forth in (1) and (2) below), provide to the other party hereunder written notice that shall state expressly (A) that it has received an Acquisition Proposal which constitutes a Superior Proposal, (B) that such party’s board of directors (or a committee thereof charged with such authority) has made the conclusions set forth in clause (y) above and (C) the identity of the party making such Acquisition Proposal and the material terms and conditions of the Acquisition Proposal (such notice, the “Superior Proposal Notice”) and may then take the following actions:
(1) furnish nonpublic information to the third party making such Acquisition Proposal, provided, that (x) prior to so furnishing, the furnishing party receives from the third party an executed confidentiality agreement containing terms no more favorable to the third party than the terms under the Confidentiality Agreement and customary standstill provisions and (y) contemporaneously with furnishing any such nonpublic information to such third party, the furnishing party furnishes a copy of such nonpublic information to the other party hereunder (to the extent such nonpublic information has not been previously so furnished); and
(2) engage in discussions and/or negotiations with the third party with respect to the Acquisition Proposal.
(d) In response to the receipt of a Superior Proposal that has not been withdrawn and continues to constitute a Superior Proposal after compliance by the party receiving the Superior Proposal with this Section 6.4(d), the board of directors (or any committee thereof charged with such authority) of such party may (x) withhold or withdraw the Company Recommendation or the Parent Recommendation, as the case may be or (y) approve, adopt, endorse or recommend to its stockholders a Superior Proposal (any of the foregoing actions, whether by the board of directors or a committee thereof, a “Change of Recommendation”), only if all of the following conditions are met:
(i) the Company Stockholders’ Meeting or the Parent Stockholders’ Meeting, as the case may be, has not occurred;
(ii) the board of directors (or any committee thereof charged with such authority) of such party has concluded in good faith, based at least in part on advice of its outside legal counsel, that, in light of such Superior Proposal, the failure of the board of directors to effect a Change of Recommendation would reasonably be expected to result in a breach of its fiduciary obligations to its stockholders under applicable Law; and
(iii) the board of directors of such party has (A) provided to the other party hereto five (5) Business Days’ prior written notice of its intent to effect a Change of Recommendation (which notice shall include reasonable details of the applicable Superior Proposal and the manner in which it intends to effect the Change of Recommendation), (B) made available to the other party hereto all materials and information made available to the person making the Superior Proposal in connection with such Superior Proposal, and (C) for such five (5) Business Day period following the delivery to the other party of such notice and the provision of the materials and information referred to in (B) above, such party shall, if requested by the other party, negotiate in good faith with the other party to revise this Agreement with the goal that the Acquisition Proposal that constituted a Superior Proposal would no longer constitute a Superior Proposal.
(e) Each of the Company and Parent agrees that it shall not submit to the vote of its stockholders any Acquisition Proposal (whether or not a Superior Proposal) or propose to do so. Nothing contained in this Agreement shall be deemed to restrict the Company or Parent from complying with Rules 14d-9 or 14e-2 under the Exchange Act or be deemed to restrict the Company or Parent from making such other disclosures as may be required by federal securities laws or applicable fiduciary duties.
(f) It is understood and agreed that the Company, its board of directors (or any committee thereof charged with applicable authority) and its outside legal counsel shall be entitled to rely on and deem applicable to the Company and its board of directors the Law applicable to corporations incorporated in Delaware for purposes of making the conclusions contemplated by this Section 6.4 (and providing advice with respect thereto) relating to the fiduciary obligations of such person. The immediately preceding sentence is intended only to govern the contractual rights of the parties to this Agreement; it being understood and agreed that nothing in this Agreement is intended to modify any fiduciary duties of the Company’s board of directors or any committee thereof under applicable Law.
Appears in 2 contracts
Sources: Merger Agreement (Integrated Circuit Systems Inc), Merger Agreement (Integrated Device Technology Inc)
No Solicitation of Transactions. (a) The Company agrees that that, from and after the date hereof until the earlier of the Effective Time or the termination of this Agreement in accordance with Article VIII, neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, except as contemplated by this Agreement, directly or indirectly, initiate, solicit, solicit or encourage or otherwise facilitate (including by way of furnishing information) any inquiries or the making of any proposal, proposal or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets of the Company and the Company Subsidiaries, taken as a whole, or 2015% or more of the equity securities of, of the Company or any Company Subsidiary that, in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an a "Acquisition ProposalCompeting Transaction"). The Company further agrees that neither it nor any Company Subsidiary Subsidiaries shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data relating to the Company or any Company Subsidiary to any Person relating to an Acquisition Proposal a Competing Transaction or engage in any negotiations concerning an Acquisition Proposala Competing Transaction, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal a Competing Transaction or accept an Acquisition Proposala Competing Transaction; provided, however, that nothing contained in this Agreement Section 6.03(a) shall prevent the Company or the Company's Board of Directors of the Company from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal Competing Transaction by any such Person; or (iiiii) recommending such an unsolicited bona fide written Acquisition Proposal Competing Transaction to the holders of Company Common Stock if and only to the extent thatif, in any such case as is referred to in clause (iii) or (iiiii), (A) the Company's Board of Directors of the Company concludes in good faith (after consultation with its legal counsel and independent financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and Competing Transaction would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal Competing Transaction being hereinafter referred to in this Agreement as a "Superior Proposal"), (B) the Company's Board of Directors of the Company determines in good faith after consultation with independent legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable lawLaw, (C) prior to providing any information or data regarding the Company to any Person or any of such Person's Representatives in connection with a Superior Proposal by any such Person, the Company's Board of Directors Company receives from such Person an executed confidentiality agreement on terms substantially similar to at least as restrictive on such Person as those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or any of such Person's Representatives or entering into discussions or negotiations with any Person or any of such Person's Representatives in connection with a Superior Proposal by such Person, the Company's Board of Directors Company notifies IHK Fiat and New Holland promptly of the receipt of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives Superior Proposal indicating, in connection with such notice, the name of such Person and attaching a copy of the terms and conditions of any proposals proposal or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions offer or negotiations with any parties conducted heretofore with respect to any Acquisition Proposalproviding a complete written summary thereof. The Company agrees that it shall keep IHK Fiat and New Holland informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiations.
(b) negotiations related to such Superior Proposal. The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken in this Section 6.056.03. Effective as of the date hereof, the Company shall terminate and cause its subsidiaries to terminate any existing activities, discussions or negotiations with any third parties that may be ongoing with respect to any Competing Transaction and shall request that all confidential information previously furnished to any such third parties be returned promptly.
Appears in 2 contracts
Sources: Merger Agreement (Case Credit Corp), Merger Agreement (Case Corp)
No Solicitation of Transactions. (a) The Until the earlier of the Effective Time and termination of this Agreement pursuant to ARTICLE VIII, except as set forth in Section 6.04(b), the Company agrees that neither it nor any Company Subsidiary shallof its Subsidiaries will, and that it shall will cause its and each Company Subsidiary's its Subsidiaries’ Representatives (including, without limitation, any investment banker, attorney or accountant retained by any Group Company), not to, in each case, directly or indirectly, initiate, (i) solicit, initiate or encourage or otherwise facilitate (including by way of furnishing information) nonpublic information concerning any Group Company), or take any other action to facilitate, any inquiries or the making of any proposalproposal or offer (including, without limitation, any proposal or offer to its shareholders) that constitutes, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of that in the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, Company’s good faith judgment could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not lead to, directly or indirectlyany Competing Transaction, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any enter into, maintain or continue discussions or negotiations with, or providing provide any nonpublic information concerning any Group Company to, any Person person in response furtherance of such inquiries or to an unsolicited bona fide written Acquisition Proposal by any such Person; obtain a proposal or offer for a Competing Transaction, (iii) recommending such an unsolicited bona fide written Acquisition Proposal agree to, approve, endorse or recommend any Competing Transaction or enter into any letter of intent or Contract or commitment contemplating or otherwise relating to any Competing Transaction, (iv) release any third party from, or waive any provision of, any confidentiality or standstill agreement to which the holders Company is a party, or (v) authorize or permit any of the officers, directors or employees of the Company Common Stock if or any of its Subsidiaries, or any Representative retained by or acting directly or indirectly under the direction of the Company or any of its Subsidiaries, to take any action set forth in clauses (a)(i) — (a)(iv) of this Section 6.04. The Company shall notify Parent as promptly as practicable (and only to the extent that, in any such case as is referred to in clause event within twenty-four (ii24) or (iiihours after the Company has knowledge thereof), orally and in writing, of any proposal or offer, regarding a Competing Transaction or that in the Company’s good faith judgment would reasonably be expected to lead to a Competing Transaction, specifying (x) the material terms and conditions thereof (including material amendments or proposed material amendments) and providing, if applicable, copies of any written proposals or offers, including proposed agreements, (y) the identity of the party making such proposal or offer, and (z) whether the Company has any intention to provide confidential information to such person. The Company shall keep Parent informed, on a reasonably current basis (and in any event within forty-eight (48) hours of the occurrence of any material changes, developments, discussions or negotiations), of the status and terms of any such proposal or offer and of any material changes in the status and terms of any such proposal, offer, inquiry, contact or request (including the material terms and conditions thereof). Without limiting the foregoing, the Company shall (A) the Company's Board of Directors concludes promptly notify Parent orally and in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completedwriting if it determines to initiate actions concerning a proposal, taking into account all legaloffer, financialinquiry, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposalcontact or request, in each case as permitted by this Section 6.04, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) provide Parent with twenty-four (24) hours prior notice (or such lesser prior notice as is provided to the Company's members of the Company Board or members of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (Cthe Special Committee) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals meeting of the Company Board or offersSpecial Committee at which the Company Board or Special Committee, as applicable, is reasonably expected to consider any Competing Transaction. The Company agrees that it will immediately shall cease and cause to be terminated any all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiationsCompeting Transaction.
(b) The Company agrees that it will take Notwithstanding anything to the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken contrary in this Section 6.056.04, the Company Board may furnish information (including nonpublic information) to, and enter into discussions with, a person who has made an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction (provided that such bona fide proposal or offer shall not have been obtained in violation of Section 6.04(a) and the Company shall have complied with the requirements of Section 6.04(a) with respect to such proposal or offer), if the Company Board has (i) determined, in its good faith judgment upon the unanimous recommendation of the Special Committee (after consultation with a financial advisor of internationally recognized reputation and independent legal counsel), that such proposal or offer constitutes a Superior Proposal, (ii) determined, in its good faith judgment upon the unanimous recommendation of the Special Committee (upon advice by independent legal counsel), that, in light of such proposal, failure to furnish such information or enter into discussions would violate its fiduciary obligations to the Company and its shareholders under applicable Law, (iii) provided written notice to Parent of its intent to furnish information or enter into discussions with such person at least two (2) Business Days prior to taking any such action, and (iv) obtained from such person an executed confidentiality agreement on terms no less favorable to the Company than those contained in the Confidentiality Agreement (it being understood that such confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right to negotiate with such party or having the effect of prohibiting the Company from satisfying its obligations under this Agreement); provided that the Company shall concurrently make available to Parent any material information concerning the Company and the Subsidiaries that is provided to any such person and that was not previously made available to Parent or its Representatives.
(c) Except as set forth in this Section 6.04(c), neither the Company Board nor any committee thereof shall change, withhold, withdraw, qualify or modify, or publicly propose to change, withhold, withdraw, qualify or modify, in a manner adverse to Parent or Merger Sub, the Company Recommendation (a “Change in the Company Recommendation”) or approve or recommend, or cause or permit the Company to enter into any letter of intent, agreement or obligation with respect to, any Competing Transaction. Notwithstanding the foregoing, if the Company Board determines, in its good faith judgment upon the unanimous recommendation of the Special Committee, prior to obtaining the Requisite Company Vote and upon advice by independent legal counsel, that failure to make a Change in the Company Recommendation would violate its fiduciary obligations to the Company and its shareholders under applicable Law, the Company Board may, upon the unanimous recommendation of the Special Committee, recommend a Superior Proposal, but only (i) if the Company shall have complied with the requirements of Section 6.04(a) and 6.04(b) with respect to such proposal or offer; (ii) after (A) providing at least five (5) Business Days’ written notice to Parent (a “Notice of Superior Proposal”) advising Parent that the Company Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal and identifying the person making such Superior Proposal and indicating that the Company Board intends to effect a Change in the Company Recommendation and the manner in which it intends (or may intend) to do so, it being understood that the Notice of Superior Proposal or any amendment or update thereto or the determination to so deliver such notice shall not constitute a Change in the Company Recommendation, (B) negotiating with and causing its financial and legal advisors to negotiate with Parent and its Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement, so that such third party proposal or offer would cease to constitute a Superior Proposal, and (C) permitting Parent and its Representatives to make a presentation to the Company Board and the Special Committee regarding this Agreement and any adjustments with respect thereto (to the extent Parent desires to make such presentation); provided that any material modifications to such third party proposal or offer that the Company Board has determined to be a Superior Proposal shall be deemed a new Superior Proposal and the Company shall be required to again comply with the requirements of this Section 6.04, provided, further, that with respect to the new written notice to Parent, the Superior Proposal Notice Period shall be deemed to be a three (3) Business-Day period rather than the five (5) Business-Day period first described above; and (iii) if Parent does not, within five (5) Business Days of Parent’s receipt of the Notice of Superior Proposal, make an offer that the Company Board determines, in its good faith judgment upon the unanimous recommendation of the Special Committee (after consultation with a financial advisor of internationally recognized reputation and independent legal counsel) to be at least as favorable to the Company’s shareholders as such Superior Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Wang Benson Haibing), Merger Agreement (Taomee Holdings LTD)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary shallwill, and that it the Company shall cause its and each their respective directors, officers, employees, agents, investment bankers, attorneys, accountants, other advisors or representatives (such persons, together with Subsidiaries, collectively, the “Company Subsidiary's Representatives Representatives”) not to, directly or indirectly, initiate, to (i) solicit, initiate or knowingly encourage or otherwise facilitate (including by way of furnishing non-public information) ), or take any inquiries or other action to knowingly facilitate the making of any proposal, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, (ii) enter into, continue or otherwise engage or participate in any discussions or negotiations regarding, or furnish to any person, any non-public information with respect to, or otherwise knowingly cooperate, encourage or facilitate any effort or attempt to make or implement an Acquisition Proposal any proposal or accept inquiry that constitutes, or could reasonably be expected to result in, an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal approve, endorse or recommend, or propose publicly to the holders of Company Common Stock if and only to the extent thatapprove, in endorse or recommend, any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and wouldor (iv) submit to a vote of its stockholders, if consummatedapprove, result endorse or recommend, or publicly announce an intention to approve, endorse or recommend, or enter into, any letter of intent, agreement in a transaction more favorable principle, merger agreement, acquisition agreement, option agreement amalgamation agreement, scheme of arrangement or other similar agreement relating to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as (other than a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Qualifying Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations in accordance with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offersSection 7.05(b)). The Company agrees that it will immediately shall cease and cause to be terminated any all existing activities, discussions or negotiations with any parties conducted heretofore with respect to an Acquisition Proposal. The Company shall not, and shall cause its Subsidiaries not to, release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party, and will immediately take all steps necessary to terminate any express approval that may have heretofore been given under any such confidentiality or standstill agreements authorizing any third party to make an Acquisition Proposal.
(b) Notwithstanding anything to the contrary in this Section 7.05, if the Company or any of the Company Representatives receives an unsolicited written Acquisition Proposal from any person or group of persons at any time prior to the Company Stockholder Meeting, the Company and Company Representatives may (i) contact such person or group of persons to clarify the terms and conditions thereof, and (ii) if the Company Board (or any committee thereof) has (A) determined, in its good faith judgment (after consultation with the Company’s financial advisors and outside legal counsel), that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, and (B) obtained from such person a Qualifying Confidentiality Agreement, furnish information to, and enter into discussions and negotiations with, such person or group of persons; provided, that the Company shall have provided written notice to BioSante of its intent to furnish information or enter into discussions or negotiations with such person or group of persons at least two (2) business days prior to taking any such action.
(c) Promptly (but in no event more than one (1) business day) following receipt thereof, the Company shall advise BioSante in writing of the receipt of any Acquisition Proposal, or the receipt of any inquiry, or of any request to enter into, continue or otherwise engage or participate in any discussions or negotiations, with respect to any Acquisition Proposal and, to the extent not inconsistent with the terms of any confidentiality obligations existing as of the date of this Agreement, a summary of the material terms and conditions of such Acquisition Proposal and the Company shall promptly provide to BioSante a copy of any Acquisition Proposal made in writing provided to the Company and copies of any written materials received by the Company in connection therewith. The Company agrees that it shall keep BioSante reasonably informed of the status of any discussions or negotiations with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informedsimultaneously provide to BioSante any non-public information concerning the Company that may be provided (pursuant to Section 7.05(b)) to any other person or group of persons in connection with any Acquisition Proposal which was not previously provided to BioSante.
(d) Notwithstanding anything to the contrary contained in Section 7.02 or this Section 7.05, on at any time prior to the Company Stockholder Approval, if the Company has received a current basis, of Superior Proposal (after giving effect to the status and terms of any revised offer by BioSante pursuant to this Section 7.05(d)), the Company Board may (x) in connection with such proposals Superior Proposal, make a Change in Company Recommendation or offers (y) terminate this Agreement for the purpose of causing the Company to enter into an acquisition agreement with respect to such Superior Proposal (provided that the Company shall have paid the Termination Fee prior to or concurrently with such termination of this Agreement in accordance with Section 9.03(b)), which the Company shall enter into concurrently with or immediately following such termination, if the Company Board has determined in good faith, after consultation with the Company’s financial advisors and outside counsel, that the failure to take such action would be inconsistent with the directors’ exercise of their fiduciary obligations to the Company and its stockholders under applicable Law and the status Company’s certificate of incorporation; provided, however, that if the Change in Company Recommendation pursuant to clause (x) or the termination of this Agreement pursuant to clause (y) is to be effected as a result of a Superior Proposal, then the Company Board may not take the actions set forth in clause (x) or (y), as the case may be, unless:
(i) the Company shall have provided prior written notice to BioSante at least five (5) business days in advance (the “Notice Period”) of its intention to take such actions, which notice shall advise BioSante that the Company Board has received a Superior Proposal, specify the material terms and conditions of such Superior Proposal and indicate that the Company Board intends to effect a Change in Company Recommendation or terminate this Agreement and the manner in which it intends (or may intend) to take such action (a “Notice of Superior Proposal”), and
(ii) during the Notice Period, the Company shall, and shall cause its financial advisors and outside counsel to, negotiate with BioSante in good faith (to the extent BioSante desires to and in fact does negotiate in good faith) to make such revisions to the terms and conditions of this Agreement so that such Acquisition Proposal ceases to constitute (in the reasonable judgment of the Company Board) a Superior Proposal. If during the Notice Period any material revisions are made to the Superior Proposal, the Company shall deliver a new written notice to BioSante specifying the details of any such discussions revisions and shall comply with the requirements of this Section 7.05(d) with respect to such new written notice, except that the new Notice Period shall be two (2) business days. Any disclosure that the Company Board may be compelled to make with respect to the receipt of a proposal or negotiationsoffer for an Acquisition Proposal or otherwise in order to comply with its fiduciary obligations to the Company and its stockholders under applicable Law and the Company’s certificate of incorporation or Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act will not constitute a violation of this Agreement (it being understood that a mere “stop, look and listen” disclosure shall not constitute a Change in Company Recommendation). Any Change in Company Recommendation shall not change the approval of the Company Board for purposes of causing any state law to be inapplicable to the transactions contemplated hereby.
(be) The Notwithstanding Section 7.05(d), at any time prior to the Company agrees that it will take Stockholder Approval, the necessary steps Company Board may, other than in response to promptly inform each a Superior Proposal, make a Change in Company Subsidiary and each Representative Recommendation if the Company Board determines, in its good faith judgment prior to the time of the Company or any Stockholder Meeting and after consultation with outside legal counsel, that failure to make a Change in Company Subsidiary Recommendation would be inconsistent with the directors’ exercise of their fiduciary obligations to the Company and its stockholders under applicable Law and the Company’s certificate of incorporation, in which event the Company Board may make a Change in Company Recommendation, but only after (i) providing written notice to BioSante advising BioSante of its intention to make a Change in Company Recommendation at least five (5) calendar days prior to effecting such Change in Company Recommendation and (ii) negotiating, and causing its financial advisors and outside counsel to negotiate, with BioSante in good faith during such five (5)-day period (to the extent BioSante desires to and in fact does negotiate in good faith) to make such adjustments in the terms and conditions of this Agreement so that the failure to make a Change in Company Recommendation would no longer be inconsistent with the directors’ exercise of their fiduciary obligations undertaken in this Section 6.05to the Company and its stockholders under applicable Law and the Company’s certificate of incorporation.
Appears in 2 contracts
Sources: Merger Agreement (Biosante Pharmaceuticals Inc), Merger Agreement (Cell Genesys Inc)
No Solicitation of Transactions. (a) Section 5.3.1 The Company agrees that neither that, prior to the Effective Time, it nor shall not, and shall not authorize or permit any Company Subsidiary shall, and that it shall cause its and each or Company Subsidiary's Representatives not toRepresentative, directly or indirectly, initiate, solicit, to take any action to (A) encourage or otherwise facilitate (including by way of furnishing non-public information) ), solicit, initiate or facilitate any inquiries or the making of any proposal, proposal or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involvingto, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, that could reasonably be expected to interfere lead to, an Acquisition Proposal, (B) enter into any agreement with the completion of respect to any Acquisition Proposal or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or the any other transactions transaction contemplated by this Agreement or (C) enter into, continue or otherwise participate in any such proposal way in discussions or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor negotiations with, or furnish any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not information to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage person in any negotiations concerning an Acquisition Proposalconnection with, or otherwise take any other action to facilitate any effort inquiries or attempt the making of any proposal that constitutes, or could reasonably be expected to make or implement an Acquisition Proposal or accept an lead to, any Acquisition Proposal; provided, however, that nothing if, at any time prior to the consummation of the Offer, the Company Board determines in good faith, after consultation with outside counsel, that it would otherwise constitute a breach of its fiduciary duties to stockholders under applicable law, the Company may, in response to a Superior Proposal, or an Acquisition Proposal that would reasonably be expected to result in a Superior Proposal, that did not result from a breach of this Section 5.3 and subject to the Company’s compliance with Section 5.3.2, (1) furnish information with respect to the Company and the Company Subsidiaries to the person making such Superior Proposal or Acquisition Proposal pursuant to a customary confidentiality agreement in a form that is reasonably acceptable to the Purchaser and (2) participate in discussions with respect to such Superior Proposal.
Section 5.3.2 The Company shall, as promptly as practicable, advise the Purchaser of any inquiry received by it relating to any potential Acquisition Proposal and of the material terms of any proposal or inquiry, including the identity of the person and its affiliates making the same, that it may receive in respect of any such potential Acquisition Proposal, or of any information requested from it or of any negotiations or discussions being sought to be initiated with it, shall furnish to the Purchaser a copy of any such proposal or inquiry, if it is in writing, or a written summary of any such proposal or inquiry, if it is not in writing and shall keep the Purchaser fully informed on a prompt basis with respect to any developments with respect to the foregoing.
Section 5.3.3 Except as otherwise set forth in this Section 5.3.3 neither the Company Board nor the Special Committee thereof shall (A) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to the Purchaser, the approval or recommendation by the Company Board or the Special Committee of the Offer and the Merger, (B) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal other than the Offer and the Merger, or (C) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or other similar agreement related to any Acquisition Proposal other than the Offer and the Merger. Nothing contained in this Agreement Section 5.3.3 shall prevent prohibit the Company (1) from taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or the Company's Board of Directors from (iRule 14e-2(a) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; Proposal (ii) engaging provided that the Company Board shall not withdraw or modify in any discussions an adverse manner its approval or negotiations withrecommendation of the Offer, the Merger or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case this Agreement except as is referred to in clause (iiset forth below) or (iii), (A2) in the Company's event that a Superior Proposal is made in compliance with this Section 5.3 and the Company Board of Directors concludes determines in good faith (faith, after consultation with its legal counsel and financial advisors) outside counsel, that such Acquisition Proposal is reasonably capable it would otherwise constitute a breach of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties duty to stockholders under applicable law, (C) from withdrawing or modifying its recommendation of the Offer and the Merger prior to providing any information or data consummation of the Offer and no earlier than five business days following the day of delivery of written notice to any Person in connection the Purchaser of its intention to do so, so long as the Company continues to comply with a Superior Proposal by any such Person, the Company's Board all other provisions of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offersthis Agreement. The Company agrees that it will immediately cease that, during the five business day period prior to withdrawing its recommendation, the Company and cause Company Representatives shall negotiate in good faith with the Purchaser and Purchaser Representatives regarding any revisions to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, the terms of the status and terms of any such proposals or offers and the status of any such discussions or negotiationstransactions contemplated by this Agreement.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken in this Section 6.05.
Appears in 2 contracts
Sources: Merger Agreement (Mossimo Inc), Merger Agreement (Mossimo Giannulli)
No Solicitation of Transactions. (a) The Company agrees that neither that, from and after the date hereof until the earlier of the Effective Time or the termination of this Agreement in accordance with Article VIII, it nor any Company Subsidiary shallshall not, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, initiate, solicit, solicit or encourage or otherwise facilitate (including by way of furnishing information) any inquiries or the making of any proposal, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an a "Company Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shallshall not, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data relating to the Company or any Company Subsidiary to any Person relating to an a Company Acquisition Proposal or engage in any negotiations concerning an a Company Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an a Company Acquisition Proposal or accept an a Company Acquisition Proposal; provided, however, that nothing contained in this Agreement Section 6.04(a) shall prevent the Company or the Company's Board of Directors Special Committee from (i) complying with Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act with regard to an a Company Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Company Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Company Acquisition Proposal to the holders of Company Common Stock if and only to the extent thatif, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors Special Committee determines in good faith after consultation with outside legal counsel to the Special Committee that such action is could reasonably be deemed to be necessary for it to act in a manner consistent with its fiduciary duties under applicable lawLaw, (B) prior to providing any information or data regarding the Company to any Person or any of such Person's Representatives in connection with a Company Acquisition Proposal by such Person, the Company receives from such Person an executed confidentiality agreement on terms at least as restrictive on such Person as those contained in the Confidentiality Agreement, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by or any of such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person Representatives or entering into discussions or negotiations with any Person or any of such Person's Representatives in connection with a Company Acquisition Proposal by such Person, the Company's Board of Directors Company notifies IHK Parent promptly of the receipt of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives Acquisition Proposal indicating, in connection with such notice, the name of such Person and attaching a copy of the terms proposal or offer or providing a complete written summary thereof, and conditions (D) the Company has not breached its obligations under the first sentence of any proposals or offersthis Section 6.04(a). The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Company Acquisition Proposal. The Company agrees that it shall keep IHK Parent informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiations.
(b) . The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken in this Section 6.056.04(a).
(b) Parent agrees that, from and after the date hereof until the earlier of the Effective Time or the termination of this Agreement in accordance with Article VIII, it shall not, and that it shall cause its Representatives not to, directly or indirectly, initiate, solicit or encourage any inquiries or the making of any proposal, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, Parent or any Parent Subsidiary that, in any such case, could reasonably be expected to preclude the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Parent Acquisition Proposal"). Parent further agrees that it shall not, and that it shall cause its Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data relating to Parent or any Parent Subsidiary to any Person relating to a Parent Acquisition Proposal or engage in any negotiations concerning a Parent Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement a Parent Acquisition Proposal or accept a Parent Acquisition Proposal; provided, however, that nothing contained in this Section 6.04(b) shall prevent Parent or the Parent Board from (i) complying with Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act with regard to a Parent Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited written Parent Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited written Parent Acquisition Proposal to the holders of Parent Common Stock if, in any such case as is referred to in clause (ii) or (iii), (A) the Parent Board concludes in good faith (after consultation with its financial advisors) that such Parent Acquisition Proposal would, if consummated, result in a transaction more favorable to holders of Parent Common Stock than the transaction contemplated by this Agreement (any such more favorable Parent Acquisition Proposal being referred to in this Agreement as a "Parent Superior Proposal"), (B) the Parent Board determines in good faith after consultation with outside legal counsel (who may be Parent's regularly engaged outside legal counsel) that such action could reasonably be deemed to be necessary for it to act in a manner consistent with its fiduciary duties under applicable Law, (C) prior to providing any information or data regarding Parent or any Parent Subsidiary to any Person or any of such Person's Representatives in connection with a Parent Superior Proposal by such Person, Parent receives from such Person an executed confidentiality agreement on terms at least as restrictive on such Person as those contained in the Confidentiality Agreement, (D) prior to providing any information or data to any Person or any of such Person's Representatives or entering into discussions or negotiations with any Person or any of such Person's Representatives in connection with a Parent Superior Proposal by such Person, Parent notifies the Company promptly of the receipt of such Parent Superior Proposal indicating, in connection with such notice, the name of such Person and attaching a copy of the proposal or offer or providing a complete written summary thereof, and (E) Parent has not breached its obligations under the first sentence of this Section 6.04(b). Parent agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Parent Acquisition Proposal. Parent agrees that it shall keep the Company informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiations. Parent agrees that it will take the necessary steps to promptly inform each Representative of Parent of the obligations undertaken in this Section 6.04(b).
Appears in 2 contracts
Sources: Merger Agreement (Medical Manager Corp/New/), Merger Agreement (Careinsite Inc)
No Solicitation of Transactions. (a) The Company, the Principals and the Principal Holdcos shall ensure that no Group Company agrees that neither it nor and none of the directors or officers of any Group Company Subsidiary shall, and that each Representative of the Company (including, without limitation, any investment banker, attorney or accountant retained by it or any Group Company), shall cause its be directed not to, and each Company Subsidiary's Representatives not toSelling Shareholder shall not, in each case, directly or indirectly, initiate, (i) solicit, initiate or encourage or otherwise facilitate (including by way of furnishing information) information in a manner designed to encourage), or take any other action to facilitate, any inquiries or discussions (including with any of the Company’s shareholders) or the making of any proposalCompeting Proposal (including, without limitation, any proposal or offer to its shareholders) that constitutes, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could would reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not lead to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Competing Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any enter into, maintain or continue discussions or negotiations with, or providing provide any nonpublic information relating to any Group Company or the Transactions to, any Person person or entity in response connection with, or in order to obtain, an unsolicited bona fide written Acquisition Proposal by any such Person; Competing Proposal, or (iii) recommending such an unsolicited bona fide written Acquisition Proposal agree to, approve, adopt, endorse or recommend (or publicly propose to agree to approve, adopt, endorse or recommend) any Competing Proposal, or enter into any letter of intent, confidentiality agreement, term sheet, Contract, commitment, obligation, arrangement or understanding contemplating or otherwise relating to, or consummate, any Competing Proposal, or (iv) authorize or permit any of the holders officers, directors or Representatives of any Group Company Common Stock if to take any action set forth in clauses (i) through (iii) above. The Company shall notify Purchaser in writing as promptly as practicable (and only to the extent that, in any such case as is referred to in clause event within twenty-four (ii24) or (iiihours after the Company has knowledge thereof), of any proposal or offer, or any request for information or other inquiry or request, that could reasonably be expected to lead to an Competing Proposal, specifying (Ax) the Company's Board of Directors concludes in good faith material terms and conditions thereof (after consultation with its legal counsel including material amendments or proposed material amendments) and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and wouldproviding, if consummatedapplicable, result in a transaction more favorable to holders copies of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquirieswritten requests, proposals or offers received byoffers, any such information requested fromincluding proposed agreements, or any such discussions or negotiations sought to be initiated or continued with, (y) the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, identity of the status party making such proposal or offer or inquiry or contact, and terms of any such proposals or offers and the status of any such discussions or negotiations.
(bz) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of whether the Company or any Company Subsidiary has determined to provide confidential information to such person in violation of the obligations undertaken in this Section 6.057.02.
Appears in 2 contracts
Sources: Share Purchase Agreement (Baidu, Inc.), Share Purchase Agreement (Alibaba Group Holding LTD)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary shall, and that it shall cause its Affiliates, Representatives and each any other agents to immediately cease any discussions, negotiations or communications with any party or parties with respect to any Competing Transaction.
(b) The Company Subsidiary's Representatives not shall not, nor shall it authorize or permit any Affiliate or Representative of the Company or its Subsidiaries to, (i) solicit, initiate, intentionally encourage, participate in or otherwise facilitate, directly or indirectly, any inquiries relating to, or the submission of, any Competing Transaction or (ii) directly or indirectly solicit, initiate, solicitintentionally encourage, encourage participate in or otherwise facilitate (including by way of furnishing information) any inquiries discussions or the making of any proposalnegotiations regarding, or offer furnish to any Third Party any information or data with respect to a mergeror provide access to the properties, reorganizationoffices, share exchangebooks, consolidationrecords, business combinationofficers, recapitalization, liquidation, dissolution directors or similar transaction involvingemployees of, or take any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could reasonably be expected other action to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not toknowingly, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage solicit, initiate, intentionally encourage, participate in any negotiations concerning an Acquisition Proposal, or otherwise facilitate the making of any effort proposal that constitutes, or attempt may reasonably be expected to make or implement an Acquisition Proposal or accept an Acquisition Proposal; providedlead to, howeverany Competing Transaction. Without limiting the generality of the foregoing, it is understood that nothing contained any violation of any of the restrictions set forth in this Agreement shall prevent Section 5.6 by any Representative or Affiliate of the Company or any of its Subsidiaries shall be deemed to be a breach of this Section 5.6 by the Company. Notwithstanding the foregoing, if, prior to obtaining the Company Required Vote, (i) the Company has complied with this Section 5.6, and (ii) the Company Board of Directors reasonably determines in good faith that a Competing Transaction constitutes or would reasonably be expected to lead to a Superior Competing Transaction, then, to the extent required by the fiduciary obligations of the Company Board of Directors, as determined in good faith by a majority thereof after consultation with the Company's outside counsel, the Company may, subject to the Company's providing prior written notice to Parent of its decision to take such action and compliance by the Company with Section 5.6(d), furnish information with respect to the Company to, and participate in discussions and negotiations directly or through its Representatives with, such Third Party, subject to a confidentiality agreement not materially less favorable to the Company than the Confidentiality Agreement, provided, that all such information not theretofor provided to Parent is provided to Parent prior to or as soon as reasonable practicable after it is provided to such Third Party.
(c) Neither the Company Board of Directors from nor any committee thereof shall (i) complying with Rule 14e-2 promulgated under withdraw or modify, or propose or resolve to withdraw or modify, in a manner adverse to Parent or Merger Sub, the Exchange Act with regard to an Acquisition Proposal; approval and recommendation by the Company Board of Directors of the Merger, this Agreement and the "agreement of merger" (as such term is used in Section 251 of the DGCL) contained herein, the Transaction Documents, the transactions contemplated hereby and thereby and the actions taken in connection herewith and therewith, (ii) engaging in any discussions approve or negotiations withrecommend, or providing propose or resolve to approve or recommend, any information Competing Transaction, (iii) approve or recommend, or propose or resolve to approve or recommend, or execute or enter into, any Acquisition Agreement, (iv) approve or recommend, or propose or resolve to approve or recommend, or execute or enter into, any agreement (written or oral) requiring it to abandon, terminate or fail to consummate the Merger, this Agreement, any Transaction Document or the transactions contemplated hereby or thereby, (v) take any action necessary to render the provisions of any Antitakeover Law inapplicable to any Competing Transaction, or (vi) propose or agree to do any of the foregoing constituting or related to, or that is intended to or would reasonably be expected to lead to, any Person Competing Transaction. Notwithstanding the foregoing, prior to obtaining the Company Required Vote, in response to an unsolicited bona fide written Acquisition Proposal a Superior Competing Transaction that was not solicited, initiated, intentionally encouraged, participated in or otherwise facilitated by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders Company in breach of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iiiSection 5.6(b), (A) the Company's Company Board of Directors concludes may, if it determines in good faith (after consultation with its the Company's outside legal counsel and financial advisorscounsel) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, failure to do so would result in a transaction more favorable breach of the fiduciary duties of the Company Board of Directors to holders the Company Stockholders under applicable Law or Order, (1) modify, or propose or resolve to modify, in a manner adverse to Parent or Merger Sub, the approvals and recommendations of the Company Common Stock than Board of Directors of the transaction Merger, or the transactions contemplated hereby or by this the Transaction Documents, or (2) terminate the Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"in accordance with Section 7.1(d), but in each case only (By) at a time that is after the Companyfifth (5th) Business Day following Parent's receipt of written notice advising Parent that the Company Board of Directors is prepared to take such action (during which period the Company shall negotiate in good faith with Parent concerning any New Parent Proposal), specifying therein all of the terms and conditions of such Superior Competing Transaction, and identifying the Person or group making such Superior Competing Transaction and (z) if, after the end of such five (5) Business Day period, the Company Board of Directors determines in good faith (after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board outside legal counsel and financial advisor) that such proposed transaction continues to be a Superior Competing Transaction, after taking into account any New Parent Proposal. The Company shall not during the term of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality this Agreement and (D) prior to providing release any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested Third Party from, or agree to amend or waive any such discussions provision of any confidentiality agreement, and the Company shall take all reasonable best efforts to enforce, to the fullest extent permitted by applicable Laws, each confidentiality agreement entered into pursuant to this Section 5.6 and any other confidentiality agreement to which the Company is or negotiations sought becomes a party.
(d) In addition to the obligations set forth in Sections 5.6(a), (b) and (c), the Company shall advise Parent orally and, if requested by Parent, in writing of (i) any Competing Transaction or any offer, proposal or inquiry with respect to or which could reasonably be initiated expected to lead to any Competing Transaction received by any officer or continued withdirector of the Company or, to the Knowledge of the Company, any Company Subsidiary or any other Representative of their Representatives indicatingthe Company, in connection with such notice, the name of such Person and (ii) the terms and conditions of such Competing Transaction (including a copy of any proposals written proposal) and (iii) the identity of the Person or offersgroup making the offer, proposal or inquiry for any such Competing Transaction immediately (but in any event within thirty-six (36) hours) following receipt by the Company or any officer or director of the Company or, to the Knowledge of the Company, any other Representative of the Company of such Competing Transaction offer, proposal or inquiry. If the Company or its Subsidiaries or any of their respective Affiliates or Representatives participates in substantive discussions or any negotiations with, or provides material information in connection with any such Competing Transaction, the Company shall keep Parent advised on a current basis of any developments with respect thereto. The Company agrees to notify Parent immediately if the Company Board of Directors determines that it will immediately cease a Competing Transaction is not a Superior Competing Transaction.
(e) Nothing contained in this Section 5.6 or any other provision hereof shall prohibit the Company or the Company Board of Directors from taking and cause disclosing to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore the Company Stockholders pursuant to Rules 14d-9 and 14e-2 promulgated under the Exchange Act a position with respect to any Acquisition Proposal. The a tender or exchange offer by a Third Party that is consistent with its obligations hereunder; provided, however, that neither the Company agrees that it shall keep IHK informednor the Company Board of Directors may either, on except as provided by Section 5.6(c), (i) modify, or propose publicly to modify, in a current basismanner adverse to Parent and Merger Sub, the approvals or recommendations of the status and terms Company Board of any such proposals Directors of the Merger or offers this Agreement and the status "agreement of any merger" (as such discussions term is used in Section 251 of the DGCL) contained herein, or negotiations(ii) approve or recommend a Competing Transaction, or propose publicly to approve or recommend a Competing Transaction.
(bf) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken Nothing in this Section 6.055.6 shall permit the Company to terminate this Agreement (except as expressly provided in Article VII).
Appears in 2 contracts
Sources: Merger Agreement (Smithkline Beecham Corp), Merger Agreement (Corixa Corp)
No Solicitation of Transactions. (a) The Company agrees that neither it will not, nor will it permit any Company Subsidiary shallof its Subsidiaries to, and that it shall will instruct and cause its and each Company Subsidiary's Representatives not to, directly or indirectly, initiate, (i) solicit, initiate or knowingly encourage or otherwise facilitate (including by way of furnishing non-public information) ), or take any other action to knowingly facilitate, any inquiries or the making of any proposalproposal or offer (including any proposal or offer to the Company’s stockholders), with respect to any Competing Company Transaction, (ii) enter into, maintain, continue or otherwise engage or participate in any discussions or negotiations with any Person in furtherance of such inquiries or to obtain a proposal or offer with respect to a mergerCompeting Company Transaction, reorganization(iii) agree to, share exchangeapprove, consolidationendorse, business combinationrecommend or consummate any Competing Company Transaction, recapitalization(iv) enter into any Competing Company Transaction Agreement or (v) resolve, liquidation, dissolution propose or similar transaction involvingagree, or authorize or permit any purchase or sale of all or Representative, to do any significant portion of the assets foregoing. The Company shall, and shall cause its Subsidiaries to, and shall instruct and cause its Representatives to, immediately cease and cause to be terminated all existing discussions or 20% or more negotiations with any Persons (other than Parent and its Affiliates) conducted prior to the execution of the equity securities of, this Agreement by the Company or any of its Subsidiaries or Representatives with respect to a Competing Company Subsidiary thatTransaction. The Company shall not, and shall cause its Subsidiaries not to, and the Company shall instruct and cause its Representatives not to, release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it or one of its Affiliates is a party in connection with a Competing Company Transaction, unless the Company Board (or a committee thereof) determines in its good faith judgment, after consulting with outside legal counsel, that failure to take any such action would be inconsistent with the Company Board’s fiduciary duties to the Company or its stockholders under Applicable Law. The Company shall, and shall cause its Subsidiaries to, promptly request each Person (other than Parent and its Affiliates) that has heretofore executed a confidentiality agreement with the Company or any of its Subsidiaries in connection with such Person’s consideration of a Competing Company Transaction (whether by merger, acquisition of stock or assets or otherwise), to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement and, if requested by Parent, to seek to enforce such Person’s obligation to do so.
(b) The Company shall promptly (and in any event within twenty-four (24) hours after the Company attains knowledge thereof) notify Parent, orally and in writing, after the receipt by the Company or any of its Representatives of any proposal, inquiry, offer or request (or any amendment thereto) with respect to a Competing Company Transaction, including any request for discussions or negotiations and any request for information relating to the Company or any of its Affiliates or for access to the business, properties, assets, books or records of the Company or any of its Affiliates. Such notice shall indicate the identity of the Person making such proposal, inquiry, offer or request and a description of such proposal, inquiry, offer or request, including in reasonable detail the terms and conditions (if any) of such proposed Competing Company Transaction, and the Company shall promptly (and in any event within twenty-four (24) hours after receipt by the Company) provide to Parent copies of any written materials received by the Company in connection with any of the foregoing. The Company agrees that it shall keep Parent reasonably informed of the status and details of (including discussions with respect thereto or amendments to) any such proposal, inquiry, offer or request. The Company agrees that it shall substantially simultaneously provide to Parent any non-public information concerning the Company that may be made available pursuant to Section 7.01(c) to any other Person in response to any such proposal, inquiry, offer or request (including discussions with respect thereto or any amendment to) unless such information has previously been provided or made available by the Company to Parent.
(c) Notwithstanding anything to the contrary in this Section 7.01, at any time prior to the Acceptance Time, the Company may furnish information to, and enter into discussions and negotiations with, any Person (or any of such Person’s Representatives) who has made a written, bona fide proposal or offer with respect to a Competing Company Transaction that did not arise or result from any material breach of Section 7.01(a) if, prior to furnishing such information and entering into such discussions and negotiations, (A) the Company Board (or a committee thereof) has determined, in any such caseits good faith judgment (after consulting with a financial advisor of nationally recognized reputation and outside legal counsel), could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any that such proposal or offer being hereinafter referred constitutes, or is reasonably likely to as an "Acquisition lead to, a Superior Proposal"). The , (B) the Company further agrees that neither it nor any Company Subsidiary shallhas provided written notice to Parent of its intent to furnish information to, and enter into discussions and negotiations with, such Person and (C) the Company has obtained (to the extent not already obtained) from such Person an Acceptable Confidentiality Agreement (it being understood that it an Acceptable Confidentiality Agreement and any related agreements shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have include any discussion provision granting such Person exclusive rights to negotiate with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or having the Company's effect of prohibiting the Company from satisfying its obligations under this Agreement) and, promptly upon its execution, delivered to Parent a copy of such Acceptable Confidentiality Agreement.
(d) Except as set forth in this Section 7.01(d), neither the Company Board of Directors from nor any committee thereof shall (i) complying with Rule 14e-2 promulgated under withdraw, qualify, modify, amend or fail to make, or propose publicly to withdraw, qualify, modify or amend the Exchange Act with regard Company Board Recommendation (or fail to an Acquisition Proposal; include the Company Board Recommendation in the Schedule 14D-9), (ii) engaging in make any discussions public statement or negotiations with, or providing take any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; action inconsistent with the Company Board Recommendation or (iii) recommending such an unsolicited bona fide written Acquisition Proposal approve or adopt, or recommend the approval or adoption of, or publicly propose to approve or adopt, any Competing Company Transaction (any of the holders of Company Common Stock if and only to the extent thatactions described in (i), in any such case as is referred to in clause (ii) or (iii), a “Change in the Company Board Recommendation”). Notwithstanding the foregoing:
(Ai) in response to an Intervening Event that has occurred after the date of this Agreement but prior to the Offer Closing, the Company Board may effect a Change in the Company Board Recommendation if: (x) prior to effecting the Change in the Company Board Recommendation, the Company promptly notifies Parent, in writing, at least five (5) Business Days (the “Intervening Event Notice Period”) before taking such action of its intent to consider such action (which notice shall not, by itself, constitute a Change in the Company Board Recommendation), and which notice shall include a reasonably detailed description of the underlying facts giving rise to, and the reasons for taking, such action; (y) the Company's Board of Directors concludes Company shall, and shall cause its Representatives to, during the Intervening Event Notice Period, negotiate with Parent in good faith to make such adjustments in the terms and conditions of this Agreement so that the underlying facts giving rise to, and the reasons for taking such action, ceases to constitute an Intervening Event, if Parent, in its sole discretion, proposes to make such adjustments (it being agreed that in the event that, after consultation commencement of the Intervening Event Notice Period, there is any material development in an Intervening Event, the Intervening Event Notice Period shall be extended, if applicable, to ensure that at least three (3) Business Days remains in the Intervening Event Notice Period subsequent to the time the Company notifies Parent of any such material development (it being understood that there may be multiple extensions)); and (z) the Company Board determines in good faith, after consulting with its outside legal counsel and a financial advisorsadvisor of nationally recognized reputation, that the failure to effect such Change in the Company Board Recommendation, after taking into account any adjustments made by Parent during the Intervening Event Notice Period, would be inconsistent with the Company Board’s fiduciary duties to the Company or its stockholders under Applicable Law; and
(ii) if at any time prior to the Acceptance Time and in response to the receipt of an offer or proposal with respect to a Competing Company Transaction that did not arise or result from any material breach of Section 7.01(a), the Company Board (or a committee thereof) determines in its good faith judgment (after consulting with a financial advisor of nationally recognized reputation and outside legal counsel) that such Acquisition offer or proposal constitutes a Superior Proposal is reasonably capable and determines in its good faith judgment, after consulting with its outside legal counsel, that a failure to make a Change in the Company Board Recommendation with respect to such Superior Proposal would be inconsistent with the Company Board’s fiduciary duties to the Company or its stockholders under Applicable Law, then the Company Board may, with respect to such Superior Proposal, (x) make a Change in the Company Board Recommendation or (y) cause the Company to terminate this Agreement pursuant to Section 9.01(f) in order to enter into a definitive agreement providing for such Superior Proposal if, in each case:
(1) the Company has provided written notice to Parent (a “Notice of being completedSuperior Proposal”) advising Parent that the Company Board has received a Superior Proposal promptly after the Company Board determines it has received a Superior Proposal, taking into account all legalstating that the Company Board intends to make a Change in the Company Board Recommendation or terminate this Agreement pursuant to Section 9.01(f) and describing in reasonable detail the terms and conditions of such Superior Proposal, financial, regulatory and other aspects including a copy of the Acquisition offer or proposal that constitutes the Superior Proposal; and
(2) Parent does not, within five (5) Business Days of receipt of the Notice of Superior Proposal and (the Person making “Notice Period”), make a written offer or proposal to revise the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders terms of Company Common Stock than the transaction contemplated by this Agreement (any such more offer, a “Revised Transaction Proposal”) in a manner that the Company Board (or a committee thereof) determines in its good faith judgment, after consulting with a financial advisor of nationally recognized reputation and outside legal counsel, to be at least as favorable Acquisition Proposal being hereinafter referred to the Company’s stockholders as a "such Superior Proposal"); provided, (B) however, that, during the Company's Board of Directors determines Notice Period, the Company shall negotiate in good faith with Parent (to the extent Parent desires to negotiate) regarding any Revised Transaction Proposal; provided, further, that any amendment to the material terms of such Superior Proposal during the Notice Period shall require a new written notice of the terms of such amended Superior Proposal from the Company and an additional two (2) Business Day Notice Period, including with respect to the Company’s obligations to negotiate in good faith with Parent.
(e) Nothing contained in this Agreement shall prohibit the Company or the Company Board from (i) disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, or from issuing a “stop, look and listen” statement pending disclosure of its position thereunder, or (ii) making any disclosure to its stockholders if the Company Board determines in its good faith judgment, after consultation with legal counsel that such action is necessary for it to act in a manner consistent consulting with its outside legal counsel, that a failure to make such disclosure would be inconsistent with the Company Board’s fiduciary duties to the Company or its stockholders under applicable lawApplicable Law; provided, however, that (C1) prior to providing any information or data to any Person in connection with a Superior Proposal by no event shall this Section 7.01(e) affect the obligations specified in Section 7.01(d) and (2) any such Persondisclosure (other than issuance by the Company of a “stop, look and listen” or similar communication of the Company's type contemplated by Rule 14d-9(f) under the Exchange Act) that addresses or relates to the approval, recommendation or declaration of advisability by the Company Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar with respect to those contained this Agreement or a Competing Company Transaction shall be deemed to be a Change in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, Company Board Recommendation unless the Company's Company Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees communication publicly states that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore its recommendation with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, of this Agreement has not changed or refers to the status and terms of any such proposals or offers and the status of any such discussions or negotiations.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative prior recommendation of the Company or Board, without disclosing any Change in the Company Subsidiary of the obligations undertaken in this Section 6.05Board Recommendation.
Appears in 2 contracts
Sources: Merger Agreement (Ig Design Group Americas, Inc.), Merger Agreement (CSS Industries Inc)
No Solicitation of Transactions. (a) The Until the earlier of the Effective Time and termination of this Agreement pursuant to Article VIII, except as set forth in Section 6.04(b), the Company agrees that neither it nor any Company Subsidiary shallof its Subsidiaries, and that it shall will cause its and each Company Subsidiary's its Subsidiaries’ Representatives (including any investment banker, attorney or accountant retained by any Group Company), not to, in each case, directly or indirectly, initiate, (i) solicit, initiate or knowingly encourage or otherwise facilitate (including by way of furnishing information) nonpublic information concerning any Group Company), or take any other action to knowingly facilitate, any inquiries or the making of any proposalproposal or offer (including any proposal or offer to its shareholders) that constitutes, or could reasonably be expected to lead to, any Competing Transaction, (ii) enter into, maintain or continue discussions or negotiations with, or provide any nonpublic information concerning any Group Company to, any Third Party in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, (iii) agree to, approve, endorse, recommend or consummate any Competing Transaction or enter into any letter of intent or Contract (other than an Acceptable Confidentiality Agreement) or commitment contemplating or otherwise relating to any Competing Transaction, (iv) grant any waiver, amendment or release under any standstill, confidentiality or similar agreement or Takeover Statutes (and the Company shall promptly take all action necessary to terminate or cause to be terminated any such waiver previously granted with respect to a mergerany provision of any such confidentiality, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution standstill or similar transaction involvingagreement or Takeover Statute and to enforce each such confidentiality, standstill and similar agreement), or (v) authorize or permit any purchase or sale of all or any significant portion of the assets or 20% or more Representatives of the equity securities of, the Company or any of its Subsidiaries to take any action set forth in clauses (i) – (iv) of this Section 6.04(a). The Company Subsidiary shall notify Parent as promptly as practicable (and in any event within forty-eight (48) hours after the Company has knowledge thereof), orally and in writing, of any proposal or offer, or any inquiry or contact with any person, regarding a Competing Transaction or that, in any such casethe Company’s good faith judgment, could reasonably be expected to interfere with lead to a Competing Transaction, specifying (x) the completion material terms and conditions thereof (including material amendments or proposed material amendments) and providing, if applicable, copies of any written requests, proposals or offers, including proposed agreements, (y) the identity of the Merger or the other transactions contemplated by this Agreement (any party making such proposal or offer being hereinafter referred or inquiry or contact, and (z) whether the Company has any intention to as an "Acquisition Proposal")provide confidential information to such person. The Company further agrees that neither it nor shall keep Parent informed, on a reasonably current basis (and in any event within forty-eight (48) hours of the occurrence of any material changes, developments, discussions or negotiations) of the status and terms of any such proposal, offer, inquiry, contact or request and of any material changes in the status and terms of any such proposal, offer, inquiry, contact or request (including the material terms and conditions thereof). Without limiting the foregoing, the Company Subsidiary shall provide Parent with forty-eight (48) hours prior notice (or such lesser prior notice as is provided to the members of the Company Board or members of the Special Committee) of any meeting of the Company Board or Special Committee at which the Company Board or Special Committee, as applicable, is reasonably expected to consider any Competing Transaction. The Company shall, and that it shall cause its Subsidiaries and each the Representatives of the Company Subsidiary's Representatives not and its Subsidiaries to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any terminate all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposala Competing Transaction. The Company agrees shall not, and shall cause its Subsidiaries not to, enter into any confidentiality agreement with any Third Party subsequent to the date of this Agreement that it shall keep IHK informed, on a current basis, of prohibits the status and terms of any Company from providing such proposals or offers and the status of any such discussions or negotiationsinformation to Parent.
(b) The Notwithstanding anything to the contrary in Section 6.04(a), at any time prior to the receipt of the Requisite Company agrees Vote, following the receipt of an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction that was not obtained in violation of this Section 6.04, the Company and its Representatives may, with respect to such proposal or offer and acting only upon the recommendation of the Special Committee:
(i) contact the person who has made such proposal or offer (A) solely to inform such person of, and direct such person to, the obligations of the Company set forth in this Section 6.04, and/or (B) to clarify and understand the terms and conditions thereof to the extent the Special Committee shall have determined in good faith that such contact is necessary to determine whether such proposal or offer constitutes a Superior Proposal or could reasonably be expected to result in a Superior Proposal;
(ii) provide information in response to the request of the person who has made such proposal or offer, if and only if, prior to providing such information, the Company has received from the person so requesting such information an executed Acceptable Confidentiality Agreement; provided, that the Company shall concurrently make available to Parent any information concerning the Company and the Subsidiaries that is provided to any such person and that was not previously made available to Parent or its Representatives; and
(iii) engage or participate in any discussions or negotiations with the person who has made such proposal or offer; provided, that prior to taking any actions described in clause (ii) or (iii), the Company Board (acting only upon recommendation of the Special Committee) or the Special Committee (to the extent it is within the authority of the Special Committee) has (A) determined, in its good faith judgment, after consultation with its financial advisor and outside legal counsel, that such proposal or offer constitutes or could reasonably be expected to result in a Superior Proposal, (B) determined, in its good faith judgment, after consultation with its financial advisor and outside legal counsel, that, in light of such Superior Proposal, failure to take such action would be inconsistent with the fiduciary duties of the Company Board or Special Committee, as applicable, under applicable Law, and (C) provided written notice to Parent at least forty-eight (48) hours prior to taking any such action.
(c) Except as set forth in Section 6.04(d) or Section 6.04(e), neither the Company Board nor any committee thereof shall (i) (A) change, withhold, withdraw, qualify or modify (or publicly propose to change, withhold, withdraw, qualify or modify), in a manner adverse to Parent or Merger Sub, the Company Recommendation, (B) fail to include the Company Recommendation in the Proxy Statement, (C) adopt, approve or recommend, or publicly propose to adopt, approve or recommend to the shareholders of the Company, a Competing Transaction, (D) if a tender offer or exchange offer that constitutes a Competing Transaction is commenced, fail to publicly recommend against acceptance of such tender offer or exchange offer by the Company shareholders (including, for these purposes, by disclosing that it will take is taking no position with respect to the necessary steps acceptance of such tender offer or exchange offer by its shareholders, which shall constitute a failure to promptly inform each recommend against acceptance of such tender offer or exchange offer) within ten (10) Business Days after the commencement thereof; provided, that a customary “stop, look and listen” communication by the Company Subsidiary Board pursuant to Rule 14d−9(f) of the Exchange Act or a statement that the Company Board has received and each Representative is currently evaluating such Competing Transaction shall not be prohibited or be deemed to be a Change in the Company Recommendation, (E) fail to recommend against any Competing Transaction subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten (10) Business Days after the commencement of such Competing Transaction, or (F) fail to publicly reaffirm the Company Recommendation following any Competing Transaction having been publicly made, proposed or communicated (and not publicly withdrawn) within ten (10) Business Days after Parent so requests in writing; provided, that Parent may not make such request more than one time with respect to any given Competing Transaction unless there shall have been a publicly disclosed change in the consideration per Share contemplated by such Competing Transaction (any of the foregoing, a “Change in the Company Recommendation”), or (ii) cause or permit the Company or any Company Subsidiary of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other or similar document or Contract with respect to any Competing Transaction, other than an Acceptable Confidentiality Agreement entered into in compliance with Section 6.04(b) (an “Alternative Acquisition Agreement”).
(d) Notwithstanding anything to the contrary set forth in this Agreement, from the date of this Agreement and at any time prior to the receipt of the obligations undertaken Requisite Company Vote, if the Company has received a bona fide written proposal or offer with respect to a Competing Transaction which was not obtained in violation of Section 6.04 and the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee (to the extent it is within the authority of the Special Committee) determines in its good faith judgment (after consultation with its financial advisor and outside legal counsel), that such proposal or offer constitutes a Superior Proposal and failure to make a Change in the Company Recommendation with respect to such Superior Proposal would be inconsistent with its fiduciary duties under applicable Law, the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee (to the extent it is within the authority of the Special Committee) may effect a Change in the Company Recommendation with respect to such Superior Proposal and/or authorize the Company to terminate this Agreement in accordance with Section 8.03(c), but only (i) if the Company shall have complied with the requirements of Section 6.04(a) and Section 6.04(b) with respect to such proposal or offer; (ii) after (A) providing at least five (5) Business Days’ (the “Superior Proposal Notice Period”) written notice to Parent (a “Notice of Superior Proposal”) advising Parent that the Company Board has received a Superior Proposal, specifying the material terms and conditions of such Superior Proposal (and providing any proposed agreements related thereto), identifying the person making such Superior Proposal and indicating that the Company Board or the Special Committee (to the extent it is within the authority of the Special Committee), as applicable, intends to effect a Change in the Company Recommendation and/or authorize the Company to terminate this Agreement in accordance with Section 8.03(c), it being understood that the Notice of Superior Proposal or any amendment or update thereto or the determination to so deliver such notice shall not constitute a Change in the Company Recommendation, (B) negotiating with and causing its financial and legal advisors to negotiate with Parent, Merger Sub and their respective Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement and the Financing, so that such Third Party proposal or offer would cease to constitute a Superior Proposal, and (C) permitting Parent and its Representatives to make a presentation to the Company Board and the Special Committee regarding this Agreement, the Financing and any adjustments with respect thereto (to the extent Parent desires to make such presentation); provided, that any material modifications to such Third Party proposal or offer that the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee (to the extent it is within the authority of the Special Committee) has determined to be a Superior Proposal shall be deemed a new Superior Proposal and the Company shall be required to again comply with the requirements of this Section 6.04(d); provided, further, that with respect to such new Superior Proposal, the Superior Proposal Notice Period shall be deemed to be a three (3) Business Day period rather than the five (5) Business Day period first described above; and (iii) following the end of such five (5) Business Day period or three (3) Business Day period (as applicable), the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee (to the extent it is within the authority of the Special Committee) shall have determined, in its good faith judgment (after consultation with its financial advisor and outside legal counsel), that taking into account any changes to this Agreement and the Financing proposed by Parent and Merger Sub in response to the Notice of Superior Proposal or otherwise, that the proposal or offer with respect to the Competing Transaction giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal.
(e) Notwithstanding anything to the contrary set forth in this Agreement, from the date hereof and until the receipt of the Requisite Company Vote, if an Intervening Event has occurred and the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee (to the extent it is within the authority of the Special Committee) determines in its good faith judgment (after receiving written advice of outside legal counsel engaged by the Special Committee, which advice shall be confirmed in writing by another outside legal counsel engaged by the Special Committee (both counsel having an international reputation of experience in the corporate Law of the Cayman Islands)) that the failure to take such action would reasonably be expected to breach its fiduciary duties under applicable Law, the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee (to the extent it is within the authority of the Special Committee) may effect a Change in the Company Recommendation; provided, that the Company Board or the Special Committee, as applicable, shall not make such Change in the Company Recommendation unless the Company has (i) provided to Parent at least five (5) Business Days’ prior written notice that it intends to take such action and specifying in reasonable detail the facts underlying the decision by the Company Board (acting only upon the recommendation of the Special Committee) or the Special Committee (to the extent it is within the authority of the Special Committee), as applicable, to take such action and (ii) during such five (5) Business Day period, if requested by Parent, engaged in good faith negotiations with Parent to amend this Agreement in such a manner that obviates the need for such Change in the Company Recommendation.
(f) Nothing contained in this Section 6.05.6.04 shall be deemed to prohibit the Company, the Company Board or the Special Committee from (i) complying with its disclosure obligations under U.S. federal or state or non-U.S. Law with regard to a Competing Transaction or proposal therefor, including taking and disclosing to its shareholders a position contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act (or any similar communication to shareholders in connection with the making or amendment of a tender offer or exchange offer); provided, that any such disclosure (other than a “stop, look and listen” communication of the type contemplated by Rule 14d-9(f) under the Exchange Act or a statement that the Company Board or Special Committee has received and is currently evaluating such Competing Transaction) that does not include an express rejection of any applicable Competing Transaction or an express reaffirmation of its recommendation in favor of the transactions contemplated by this Agreemen
Appears in 2 contracts
Sources: Merger Agreement (Zhang Ray Ruiping), Agreement and Plan of Merger (eHi Car Services LTD)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary shall, and that it shall cause its Subsidiaries and each of their respective affiliates, directors, officers, employees, agents and representatives (including any investment banker, financial advisor, attorney, accountant or other representative retained by the Company Subsidiary's Representatives or any of its Subsidiaries) to immediately cease and cause to be terminated any discussions or negotiations with any Person other than the Company, its Affiliates, or their respective representatives (any such other Person, a “Third Party”) that may be ongoing with respect to the possibility or consideration of any Acquisition Proposal. In addition, the Company shall enforce and shall not terminate, amend, modify or waive any standstill provision of any confidentiality agreement or other standstill agreement between the Company and any Third Party entered into prior to the date hereof. From the date of this Agreement through the Effective Time, the Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its or its Subsidiaries’ directors, officers or employees or any investment banker, financial advisor, attorney, accountant or other representative retained by it or any of its Subsidiaries to, directly or indirectlyindirectly through another person, initiate, (i) solicit, initiate or knowingly encourage or otherwise facilitate (including by way of furnishing non-public information) ), or take any inquiries other action designed to facilitate or encourage the making of any proposalproposal by any Third Party that constitutes an Acquisition Proposal, (ii) participate in any discussions or negotiations with any Third Party regarding, or offer provide any nonpublic information or data to any Third Party relating to, any Acquisition Proposal, (iii) make or authorize any public statement, recommendation or solicitation in support of, or execute or enter into, or propose to execute or enter into, any letter of intent, agreement in principle, merger agreement, acquisition agreement, or other similar agreement providing for any Acquisition Proposal or (iv) enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the transactions contemplated by this Agreement.
(b) Notwithstanding the foregoing, until consummation of the Offer in accordance with respect this Agreement, the Board shall be permitted directly or indirectly, through one or more agents, representatives or other intermediaries, to engage in discussions and negotiations with, or provide nonpublic information or data to, any Person in response to an unsolicited, bona fide written Acquisition Proposal by such Person made after the date of this Agreement that did not result from a breach of Section 5.1(a), which the Board concludes in good faith (after consultation with outside counsel and its financial advisor) constitutes or would reasonably be expected to lead to a Superior Proposal, but only if, prior to furnishing such information to or entering into negotiations or discussions with such Person, the Company enters into a confidentiality agreement with such Person having provisions that are no less restrictive to such Person than those applicable to Parent and contained in the Confidentiality Agreement. The Company shall notify Parent as promptly as practicable (and in no event later than 24 hours) after receipt of any Acquisition Proposal, or any request for nonpublic information relating to the Company or any of its Subsidiaries by any Person that informs the Company or any of its Subsidiaries that it is considering making an Acquisition Proposal, or any inquiry from any Person seeking to have discussions or negotiations with the Company relating to a possible Acquisition Proposal. Such notice shall be made orally and confirmed in writing, and shall indicate the identity of the Person making the Acquisition Proposal, inquiry or request. The Company agrees that it shall keep Parent reasonably informed of the status (but not specific terms) of any such inquiries, proposals, offers, discussions or negotiations on a current basis.
(c) The Board may (i) withdraw, modify or change, in a manner adverse to Parent or Purchaser, the Board’s recommendation to accept the Offer and approve the Merger, (ii) approve or recommend that stockholders approve or accept a Superior Proposal, (iii) terminate this Agreement in accordance with Section 7.1(f) or (iv) take any action that any court of competent jurisdiction orders the Company to take, in each case, prior to the consummation of the Offer in accordance with this Agreement, but only if prior to taking any such action in clause (i) through (iv), above, (A) the Board determines in good faith after consultation with the Company’s financial advisors and outside legal counsel, that an Acquisition Proposal constitutes a Superior Proposal and that failure to take any such action would result in a reasonable likelihood of a breach of the fiduciary duties of the Board under applicable law, (B) the Company shall have provided Parent with at least three (3) Business Days’ prior notice of its intention to take any such action and of the terms of such Superior Proposal (including providing a copy of the final terms of such Superior Proposal), (C) during such three (3) Business Day period, the Board shall have given due consideration to any proposals made by Parent to adjust the Offer and the Transactions; and (D) the Board shall have determined (1) after consultation with its financial advisor, that any such proposal made by or on behalf of Parent is less favorable to the Company stockholders than the Superior Proposal and (2) after consultation with outside legal counsel, it would result in a reasonable likelihood that the Board would breach its fiduciary duties to the Company stockholders under applicable law if it failed to take such action described in clause (i) through (iv) above. Nothing contained in this Section 5.1 shall prohibit the Company or its Subsidiaries from complying with Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act; provided, however, that compliance with such rules shall not in any way limit or modify the effect that any action taken pursuant to such rules has under any other provision of this Agreement.
(d) For purposes of this Section 5.1, “Acquisition Proposal” means (i) any proposal or offer from any Third Party relating to any direct or indirect acquisition of (A) fifteen percent (15%) or more of the consolidated assets of the Company and its Subsidiaries (either directly or through the acquisition of equity securities of any Subsidiary), (B) fifteen percent (15%) or more of any class of equity securities of the Company; (ii) any tender offer or exchange offer, as defined pursuant to the Exchange Act, that, if consummated, would result in any person beneficially owning fifteen percent (15%) or more of any class of equity securities of the Company or (iii) any merger, reorganization, share exchange, consolidation, business combination, sale of all or a substantial part of the assets, recapitalization, liquidation, dissolution or similar transaction involving, involving the Company or any purchase or sale of all or any significant portion of the Subsidiary whose assets or 20% constitute fifteen percent (15%) or more of the equity securities of, consolidated assets of the Company or any Company Subsidiary thatand its Subsidiaries, in any such case, could reasonably be expected to interfere with each case other than the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Transactions. “Superior Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited ” means a bona fide written Acquisition Proposal not solicited by or on behalf of the Company or any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal Subsidiary that the Board determines in its good faith judgment to be superior to the Offer and Merger from a financial point of view to the holders of Company Common Stock if (based on the advice of an independent financial advisor of nationally recognized reputation ), taking into account all the terms and only to the extent conditions of such proposal, and (B) that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal judgment of the Board, is reasonably capable of being completedlikely to be consummated, taking into account all legal, financial, regulatory regulatory, and other aspects of the Acquisition Proposal proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiationsproposal.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken in this Section 6.05.
Appears in 2 contracts
Sources: Merger Agreement (Imagistics International Inc), Merger Agreement (Oce N V)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary shall, and that it shall cause the Company Subsidiaries, and its and each their respective officers, directors, employees, agents or advisors or other representatives (including, without limitation, any financial advisor or investment banker, legal counsel or accountant retained by it) (“Representatives”) to, immediately cease and cause to be terminated any discussions or negotiations with third parties with respect to an Acquisition Proposal (as defined below). The Company Subsidiary's will not, directly or indirectly, and will instruct its Representatives not to, directly or indirectly, initiate, solicit, initiate or, except as and only to the extent permitted by Section 6.03(b), encourage or otherwise facilitate (including by way of furnishing non-public information) ), or take any other action to facilitate, any inquiries or the making of any proposalproposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or offer may reasonably be expected to lead to, any Acquisition Proposal, or, except as and only to the extent permitted by Section 6.03(b), enter into or maintain or continue discussions or negotiate with respect any Person in furtherance of such inquiries or to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involvingobtain an Acquisition Proposal, or agree to or recommend or endorse any purchase Acquisition Proposal, or sale authorize or permit any Representative of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any of the Company Subsidiary thatSubsidiaries to take any such action. The Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party, including any Support Agreement.
b) Notwithstanding anything to the contrary in this Section 6.03, at any time prior to the Arrangement having been approved by the Company Shareholders, the Company Board may furnish information to, and enter into discussions with, a Person who has made an unsolicited bona fide written proposal or offer regarding an Acquisition Proposal (that did not result from a breach of this Section 6.03), and with respect to which (i) the Company Board has determined, in any its good faith judgment (after consultation with its financial advisor), that such case, proposal or offer constitutes or could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement result in a Superior Proposal (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"defined below). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging the Company Board has determined, in any its good faith judgment after consultation with outside legal counsel, that, in light of such Superior Proposal, the failure to furnish such information or to enter into such discussions or negotiations withwould result in a breach of its fiduciary obligations under applicable Law, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iiihas satisfied its obligations under Section 6.03(c), (Aiv) the Company's Company Board has provided written notice to the Purchaser Parties of Directors concludes in good faith (after consultation its intent to furnish information or enter into discussions with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, Person at least three Business Days prior to taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposalany such action, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (Bv) the Company's Company Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives has obtained from such Person an executed confidentiality agreement on terms substantially similar containing confidentiality provisions no less favourable to the Company than those contained in the Confidentiality Agreement Agreement.
c) The Company agrees that in addition to the obligations of the Company set forth in paragraphs (a) and (Db) prior to providing of this Section 6.03, immediately upon receipt thereof, the Company shall advise the Parent in writing of any request for information or data to any Person Acquisition Proposal, or entering into any inquiry, discussions or negotiations with respect to any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person Acquisition Proposal and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activitiessuch request for information, Acquisition Proposal, inquiry, discussions or negotiations and the Company shall promptly provide to the Parent copies of any written materials received by the Company in connection with any parties conducted heretofore of the foregoing, and the identity of the Person or group making any such request for information, Acquisition Proposal or inquiry or with respect to whom any Acquisition Proposaldiscussions or negotiations may be taking place. The Company agrees that it shall keep IHK informedthe Purchaser informed of the status, on a current basisterms and material details (including amendments or proposed amendments) of any such request for information, Acquisition Proposal or inquiry and keep the Purchaser informed as to the details of any information requested of or provided by the Company and as to the status and material terms of all substantive discussions or negotiations with respect to any such proposals request, Acquisition Proposal or offers and the status of any such discussions or negotiations.
(b) inquiry. The Company agrees that it will take shall simultaneously provide to the necessary steps to promptly inform each Company Subsidiary and each Representative of Purchaser any non-public information concerning the Company that may be provided to any other Person or group in connection with any Company Subsidiary of Acquisition Proposal which was not previously provided to the obligations undertaken in this Section 6.05Purchaser.
Appears in 2 contracts
Sources: Arrangement Agreement (Acorn Energy, Inc.), Arrangement Agreement (Acorn Energy, Inc.)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary shall, and that nor shall it shall cause its and each authorize or permit the Representatives of the Company Subsidiary's Representatives not or the Subsidiaries to, directly or indirectly, initiate, solicit, (i) solicit or initiate or knowingly encourage or otherwise knowingly facilitate (including by way of furnishing information) any inquiries or the making implementation or submission of any proposal, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate (ii) participate in discussions or negotiations regarding, or furnish to any effort or attempt to make or implement an Acquisition Proposal or accept an person any non-public information in connection with, any Acquisition Proposal; provided, however, that that, prior to the adoption of this Agreement by the Company's stockholders at the Company Stockholders' Meeting, nothing contained in this Agreement shall prevent the Company or the Company's Company Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any furnishing information to, or engaging in negotiations or discussions with, any Person person in response to connection with an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock person, if and only to the extent that, in any that prior to taking such case as is referred to in clause (ii) or (iii), action (A) the Company's Company Board of Directors concludes believes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is is, or could reasonably capable of being completedbe expected to result in, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition a Superior Proposal, and wouldthe Company Board determines in good faith (after consultation with its outside legal counsel) that it is required to do so in order to comply with its fiduciary duties to the stockholders of the Company under applicable Law, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), and (B) the Company's Company Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person person an executed confidentiality agreement on agreement, the terms of which are substantially similar to and no less favorable to the Company than those contained in the Confidentiality Agreement Agreement. Except as set forth in this Section 6.03, neither the Company nor any Subsidiary shall enter into any letter of intent, acquisition agreement or similar agreement with respect to an Acquisition Proposal (other than a confidentiality agreement referred to in this Section 6.03(a)).
(b) The Company shall notify Parent as promptly as practicable (and (Din any event within 48 hours) prior to providing of the receipt by the Company or any of the Subsidiaries, or any of its or their respective Representatives, of any bona fide inquiries, proposals or offers, requests for information or data to any Person or entering into requests for discussions or negotiations with regarding any PersonAcquisition Proposal, specifying the Company's Board material terms and conditions thereof and the identity of Directors notifies IHK promptly the party making such proposal. The Company shall keep Parent reasonably informed of the status of any such discussions or negotiations and of any modifications to such inquiries, proposals or offers received by(the Company agreeing that it shall not, and shall cause the Subsidiaries not to, enter into any confidentiality agreement with any person subsequent to the date of this Agreement which prohibits the Company from providing such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offersParent). The Company agrees that neither it will nor any Subsidiary shall terminate, waive, amend or modify any provision of any existing standstill or confidentiality agreement to which it or any of the Subsidiaries is a party and that it and the Subsidiaries shall enforce the provisions of any such agreement. The Company shall, and shall cause the Subsidiaries and its and their Representatives to, immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore that may be ongoing with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, Proposal as of the status and terms of any such proposals or offers date hereof, shall take reasonable steps to inform its and the status of any such discussions or negotiations.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary Subsidiaries' Representatives of the obligations undertaken in this Section 6.056.03 and shall request that all confidential information previously furnished to any such third parties be returned promptly.
(c) Except as set forth in this Section 6.03, the Company Board (or any committee thereof) shall not, and shall not publicly propose to, (i) withdraw or modify, in a manner adverse to Parent or Merger Sub, the approval or recommendation of this Agreement, the Merger or the other Transactions by the Company Board (or any committee thereof); (ii) approve or recommend any Acquisition Proposal; or (iii) approve any letter of intent, acquisition agreement or similar agreement with respect to any Acquisition Proposal (other than a confidentiality agreement referred to in this Section 6.03). Notwithstanding the foregoing, prior to the adoption of this Agreement by the Company's stockholders at the Company Stockholders' Meeting, (x) in response to the receipt of an unsolicited bona fide written Acquisition Proposal, if the Company Board (A) determines in good faith (after consultation with its advisors) that such Acquisition Proposal is a Superior Proposal and (B) determines in good faith (after consultation with its outside legal counsel) that it is required to do so in order to comply with its fiduciary duties to the stockholders of the Company under applicable Law, then the Company Board may approve and recommend such Superior Proposal and, in connection with such Superior Proposal, withdraw or modify the Company Board Recommendation or (y) other than in connection with an Acquisition Proposal, if the Company Board determines in good faith (after consultation with its outside legal counsel) that it is required to do so in order to comply with its fiduciary duties to the stockholders of the Company under applicable Law, then the Company Board may withdraw or modify the Company Board Recommendation (either event described in the foregoing clauses (x) and (y), a "Change in Board Recommendation").
(d) Nothing contained in this Agreement shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any disclosure to the Company's stockholders if the Company Board (or any committee thereof) determines in good faith (after consultation with its outside legal counsel) that it is required to do so under applicable Law; provided, however, that neither the Company nor the Company Board (nor any committee thereof) shall (i) recommend that the stockholders of the Company tender their Shares in connection with any such tender or exchange offer (or otherwise approve or recommend any Acquisition Proposal) or (ii) withdraw or modify the Company Board Recommendation, unless in the case of each of clause (d)(i) and (d)(ii) hereof, the requirements of Section 6.03(c) shall have been satisfied.
(e) Except as set forth in Section 8.03(d) with respect to an Acquisition Proposal, for purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Huizenga H Wayne), Merger Agreement (Boca Resorts Inc)
No Solicitation of Transactions. The Company, its affiliates and their respective officers, directors, employees, representatives and agents (ai) The shall immediately cease any existing discussions or negotiations, if any, with any parties with respect to any acquisition (other 37 than the transactions contemplated by this Agreement) of all or any material portion of the assets of, or any equity interest in, the Company agrees that neither it nor or any of the Company Subsidiary shallSubsidiaries or any business combination with the Company or any of the Company Subsidiaries, and that it (ii) shall cause its and each Company Subsidiary's Representatives not tonot, directly or indirectly, solicit, initiate, solicitencourage, encourage or otherwise facilitate (including by way of furnishing information) furnish information in response to any inquiries or the making of any proposalproposals that constitute, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could reasonably be expected to interfere lead to, an Acquisition Transaction, (iii) shall not engage in negotiations or discussions concerning, or provide any non-public information to any person or entity relating to, any Acquisition Transaction, or (iv) shall not agree to, approve or recommend any Acquisition Transaction; except, with respect to clauses (ii) (as to the completion furnishing of information only), (iii) and (iv), where any such person or entity has submitted a written proposal to the Company's Board of Directors relating to an Acquisition Transaction and the Company's Board of Directors has received the written opinion of Irell & Mane▇▇▇ ▇▇▇ to the effect that the failure of the Company's Board of Directors to so act would constitute a violation of the Board of Directors' fiduciary responsibilities to the holders of the Company Common Stock under applicable law (it being understood that for this purpose, the failure to respond to an Acquisition Proposal which in the judgment of the Company's Board of Directors and BZW is superior, from a financial point of view, to the Company's stockholders may be deemed to be a breach of such fiduciary duty). If the Company shall nevertheless receive any indications of interest or proposals with respect to any Acquisition Transactions, it shall provide a copy of any such written proposal to Purchaser immediately after receipt thereof by the Company or any of its representatives or agents, shall notify Parent immediately if any such proposal (whether oral or written) is made and shall keep Parent promptly advised of all developments which could reasonably be expected to culminate in the Board of Directors of the Company withdrawing, modifying or amending its recommendation of the Offer, the Merger or and the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal")Agreement. The Company further agrees that neither it nor any Company Subsidiary shallExcept with Parent's consent, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard agrees not to an Acquisition Proposal; (ii) engaging in release any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested third party from, or waive any such discussions or negotiations sought to be initiated or continued with, the Companyprovisions of, any Company Subsidiary confidentiality or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause standstill agreement to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiations.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of which the Company or any Company Subsidiary of the obligations undertaken in this Section 6.05is a party.
Appears in 2 contracts
Sources: Merger Agreement (Nick Acquisition Corp), Merger Agreement (National Education Corp)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary shallshall not, and that it shall cause its and each Company Subsidiary's Representatives Subsidiaries not to, directly or indirectlyand shall use its reasonable best efforts to cause its and its Subsidiaries’ directors, officers, employees, advisors, attorneys, accountants, investment bankers and agents (with respect to any Person, the foregoing Persons are referred to herein as such Person’s “Representatives”) not to, (i) solicit, initiate, solicit, knowingly encourage or facilitate any inquiry with respect to, or the making, submission or announcement of, any Takeover Proposal or (ii) engage in, continue or otherwise participate in any substantive discussions or negotiations regarding, or furnish to any Person any non-public information or data with respect to, or take any other action to facilitate (including by way of furnishing information) or encourage any inquiries or the making of any proposal, proposal that constitutes or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could may reasonably be expected to interfere with lead to, a Takeover Proposal. Notwithstanding the completion foregoing, at any time prior to receipt of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Requisite Company further agrees that neither it nor any Company Subsidiary shallVote, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from if (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; Company has not breached this Section 6.2 in any material respect, and (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited the Company receives a bona fide written Acquisition Takeover Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to from a third party that the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes determines in good faith (after consultation with its outside legal counsel and a financial advisorsadvisor of nationally recognized reputation) that such Acquisition Proposal is constitutes or may reasonably capable of being completedbe expected to lead to a Superior Proposal, taking into account all legal, financial, regulatory the Company may (1) furnish information (including non-public information) with respect to the Company and other aspects of the Acquisition Proposal and its Subsidiaries to the Person making such Takeover Proposal (provided that the Acquisition Proposal, Company shall only provide or permit to be provided to such Person any non-public information with respect to the Company or any of its Subsidiaries if (x) such Person has executed a confidentiality agreement that constitutes an Acceptable Confidentiality Agreement and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (y) substantially contemporaneously with furnishing any such more favorable Acquisition Proposal being hereinafter referred information to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board Company notifies Parent of Directors receives from such action and furnishes Parent a list of such written information provided to such Person an executed and, to the extent such written information has not been previously furnished to Parent and doing so is consistent with applicable Law, copies of such information), and (2) participate in substantive discussions and negotiations with such Person regarding such Takeover Proposal and, to the extent reasonably required to evaluate a Takeover Proposal, may enter into a customary confidentiality agreement on terms substantially similar in order to those contained in the Confidentiality Agreement and (D) prior obtain non-public information with respect to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers(an “Other Confidentiality Agreement”). The Company agrees that it will immediately cease and cause its Subsidiaries shall use their reasonable best efforts to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, inform their Representatives of the status and terms of any such proposals or offers and the status of any such discussions or negotiationsrestrictions described in this Section 6.2.
(b) The Except as expressly permitted by this Section 6.2(b), (i) the Company agrees that it will take Board (or the necessary steps applicable committee thereof) shall not (x) fail to promptly inform each make, withdraw, modify or amend, or publicly propose or resolve to withhold, withdraw, modify or amend, in a manner adverse to Parent or Merger Sub, the Company Subsidiary Recommendation or (y) approve, endorse or recommend, or publicly propose or resolve to approve, endorse or recommend, to the Company’s stockholders a Takeover Proposal (other than with Parent) (any action described in clause (x) or clause (y) immediately above being referred to herein as a “Change in Recommendation”) and each Representative of (ii) the Company shall not, and shall cause its Subsidiaries not to, enter into, and the Company Board (or the applicable committee thereof) shall not authorize the Company or any Company Subsidiary of the obligations undertaken its Subsidiaries to enter into, any merger agreement, letter of intent, agreement in this Section 6.05.principle, stock purchase agreement, asset purchase agreement or stock exchange agreement, option agreement or other similar agreement, in each case providing for or relating to a Takeover Proposal (each, a
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Ust Inc), Merger Agreement (Altria Group, Inc.)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary shallSubject to Section 5.6(b), from and after the date of this Agreement, AirTran shall not, and that it shall cause its each of the AirTran Subsidiaries and each Company Subsidiary's Representatives officer and director of AirTran or any AirTran Subsidiary not to, and shall use reasonable best efforts to cause any employee, agent, consultant, or representative (including any financial or legal advisor or other representative) (collectively with each officer and director, the “Representatives”) of AirTran or any of the AirTran Subsidiaries not to, and upon an executive officer of AirTran becoming aware of such activities by any such Person, AirTran will use reasonable best efforts to stop such Person from continuing to, directly or indirectly, (i) solicit, initiate, solicitendorse, or knowingly encourage or otherwise facilitate (including by way of furnishing non-public information) any inquiries or the making of any inquiry, proposal, or offer or afford access to the employees, business, properties, assets, books, or records of AirTran or any of the AirTran Subsidiaries, with respect to a mergerthe making or completion of any Acquisition Proposal, reorganization(ii) engage in, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involvingcontinue, or otherwise participate in any purchase discussions (other than to inform a Person of the existence of the provisions in this Section 5.6) or sale negotiations regarding, or furnish to any Person any non-public information or data with respect to, any Acquisition Proposal, or (iii) resolve, propose, or agree to do any of the foregoing. Subject to Section 5.6(b), AirTran shall, and shall cause each of the AirTran Subsidiaries and the Representatives of AirTran and the AirTran Subsidiaries to, (x) immediately cease and cause to be terminated all existing discussions or negotiations with any Person conducted heretofore with respect to any Acquisition Proposal and (y) promptly request and use reasonable best efforts to obtain the prompt return or cause the destruction of all copies of confidential information previously furnished to any such Person.
(b) Notwithstanding anything to the contrary in Section 5.6(a), if at any time following the date of this Agreement and prior to obtaining the AirTran Stockholder Approval, AirTran receives a bona fide written Acquisition Proposal that was not solicited or initiated on or after the date of this Agreement in violation of Section 5.6(a), and if the AirTran Board (or any significant portion duly constituted and authorized committee thereof) determines in its good faith judgment, after consulting with and receiving the advice of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated (or another financial advisor of similar nationally recognized reputation selected in good faith by the assets AirTran Board (the “AirTran Financial Advisor”)) and outside legal counsel, that such Acquisition Proposal constitutes or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could reasonably be expected to interfere lead to a Superior Proposal and that there is a reasonable probability that the failure to take such action would cause the AirTran Board to violate its fiduciary duties to AirTran and its stockholders under Nevada Law, AirTran and its Representatives may (x) furnish, pursuant to an Acceptable Confidentiality Agreement, information and data (including non-public information) with respect to AirTran and the AirTran Subsidiaries to the Person or group of Persons that has made such Acquisition Proposal and will promptly (and in any event within 24 hours) provide to Southwest copies of any such information not previously provided to Southwest and (y) engage in, maintain, and participate in discussions or negotiations with the completion of the Merger Person or the other transactions contemplated by this Agreement (Persons making such Acquisition Proposal and their Representatives or otherwise cooperate with or assist or participate in, or encourage or facilitate, any such proposal discussions or offer being hereinafter referred to as an "negotiations regarding such Acquisition Proposal"). .
(c) The Company further agrees that neither it nor any Company Subsidiary shallAirTran Board shall not (i) (A) fail to make the Recommendation to the stockholders of AirTran, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with withdraw (or provide any confidential information modify or data to any Person relating to an Acquisition Proposal or engage qualify in any negotiations concerning an manner adverse to Southwest or Merger Sub) the Recommendation, (B) adopt, approve, recommend, endorse, or otherwise declare advisable the adoption of any Acquisition Proposal, or otherwise facilitate (C) resolve, agree, or publicly propose to take any effort such actions (each such action set forth in this Section 5.6(c)(i) being referred to herein as an “Adverse Recommendation Change”) or attempt (ii) cause or permit AirTran or any of the AirTran Subsidiaries to make enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement, or implement an other agreement constituting or related to, or which is intended to or would reasonably be likely to lead to, any Acquisition Proposal (each, an “Alternative Acquisition Agreement”), other than any Acceptable Confidentiality Agreement in accordance with Section 5.6(b). Notwithstanding the foregoing, at any time prior to obtaining the AirTran Stockholder Approval, the AirTran Board may make an Adverse Recommendation Change:
(i) if an event, fact, circumstance, or accept occurrence, or combination or series thereof, that was not known to the AirTran Board as of the date of this Agreement becomes known to the AirTran Board (an Acquisition “Intervening Event”) or
(ii) in response to a Superior Proposal received after the date of this Agreement, which has not been withdrawn and continues to be a Superior Proposal, in either of clauses (i) or (ii), if, and only if, the AirTran Board determines in good faith (after consulting with and receiving the advice of outside legal counsel) that there is a reasonable probability that the failure to do so would cause the AirTran Board to violate its fiduciary duties to AirTran and its stockholders under Nevada Law, and after such Adverse Recommendation Change AirTran may terminate this Agreement pursuant to Section 8.1(d)(ii); provided, however, that nothing contained in the case of any Adverse Recommendation Change that is the result of a Superior Proposal or an Intervening Event (A) (1) no Adverse Recommendation Change may be made until after the second Business Day following Southwest’s receipt of written notice from AirTran advising Southwest that management of AirTran will convene a meeting of the AirTran Board to consider whether the AirTran Board should make an Adverse Recommendation Change and (2) in the case of a Superior Proposal, no such termination of this Agreement pursuant to Section 8.1(d)(ii) may be made until after the third Business Day following Southwest’s receipt of written notice from AirTran advising Southwest that AirTran intends to terminate this Agreement pursuant to Section 8.1(d)(ii) and specifying the relevant terms and conditions of (including the identity of the Persons making the Superior Proposal) the Superior Proposal that is the basis of the proposed action by the AirTran Board, and contemporaneously furnishing to Southwest a copy of the relevant Alternative Acquisition Agreement and any other relevant transaction documents (it being understood and agreed that any change in consideration and any material amendment to the terms and conditions of such Superior Proposal shall prevent the Company require a new written notice by AirTran to Southwest and an additional one Business Day period before AirTran may terminate this Agreement), (B) during such two or the Company's Board of Directors from three Business Day period, as applicable (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard and any additional one Business Day period), AirTran shall, and shall cause its financial and legal advisors to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information be available to, any Person negotiate with Southwest in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or good faith (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent thatSouthwest seeks to negotiate) to make such adjustments to the terms and conditions of this Agreement as would enable the AirTran Board to proceed with the Recommendation and not make such an Adverse Recommendation Change or cause AirTran to terminate this Agreement, and (C) in the case of a Superior Proposal, the AirTran Board shall not make such an Adverse Recommendation Change and AirTran shall not terminate this Agreement if, prior to the expiration of such three Business Day period (or any such case as is referred to in clause (ii) or (iiiadditional one Business Day period), (A) Southwest makes a proposal to adjust the Company's terms and conditions of this Agreement that the AirTran Board of Directors concludes determines in good faith (after consultation consulting with its and receiving the advice of outside legal counsel and financial advisorsthe AirTran Financial Advisor) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more to be at least as favorable to holders of Company Common Stock than AirTran and its stockholders as the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal").
(d) AirTran agrees that it will promptly (and, (Bin any event, within 24 hours) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing notify Southwest if any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers with respect to an Acquisition Proposal are received by, any such information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, AirTran, the CompanyAirTran Subsidiaries, any Company Subsidiary or any of their its or the AirTran Subsidiaries’ Representatives indicating, in connection with such notice, the name of such Person and the material terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals, or offers. The Company agrees that it will immediately cease , including proposed agreements) and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it thereafter shall keep IHK Southwest informed, on a reasonably current basisbasis (which shall be considered in light of the circumstances of such proposal or offer and the time by which Southwest has the opportunity to respond), of the status and terms of any such proposals or offers and the status of (including any such discussions or negotiationsamendments thereto).
(be) The Company agrees that it will take the necessary steps to AirTran shall promptly inform each Company Subsidiary its Representatives, and each Representative of shall cause the Company or any Company Subsidiary AirTran Subsidiaries promptly to inform their respective Representatives, of the obligations undertaken under this Section 5.6. Without limiting the foregoing, it is understood that any violation of the provisions of this Section 5.6 by any director or officer of AirTran, either directly or by knowingly permitting a violation by another Representative of AirTran or any AirTran Subsidiary, shall be deemed to be a breach of this Section 5.6 by AirTran.
(f) Nothing contained in this Section 6.055.6 shall be deemed to prohibit AirTran from making any disclosure to AirTran’s stockholders if, in the good faith judgment of the AirTran Board (after consulting with and receiving the advice of outside legal counsel) failure to do so would violate AirTran’s disclosure requirements under U.S. federal or state Law; provided, however, that in no event shall any such requirement eliminate or modify the effect that any action pursuant to such requirement would otherwise have under this Section 5.6; and provided further, that any such disclosure shall not be deemed to be an Adverse Recommendation Change (including for purposes of Section 8.1(c)(i)) if the AirTran Board publicly reaffirms the Recommendation in such disclosure.
(g) For purposes of this Agreement:
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Airtran Holdings Inc), Agreement and Plan of Merger (Southwest Airlines Co)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary shallEach party to this Agreement shall not, directly or indirectly, and that it shall cause instruct its and each Company Subsidiary's Representatives officers, directors, employees, subsidiaries, agents or advisors or other representatives (including, without limitation, any investment banker, attorney or accountant retained by it), not to, directly or indirectly, initiate, solicit, initiate or knowingly encourage or otherwise facilitate (including by way of furnishing nonpublic information) ), or take any other action knowingly to facilitate, any inquiries or the making of any proposalproposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could may reasonably be expected to interfere lead to, any Competing Transaction, or enter into or maintain or continue discussions or negotiate with the completion any person in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, or authorize or permit any of the Merger officers, directors or the employees of such party or any of its subsidiaries, or any investment banker, financial advisor, attorney, accountant or other transactions contemplated representative retained by this Agreement (such party or any of such party's subsidiaries, to take any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposalaction; provided, however, that nothing contained in this Agreement Section 6.06 shall prevent prohibit the Company board of directors of CGI or the Company's Board of Directors STC from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; a tender or exchange offer or (ii) engaging after receiving the advice of outside counsel to the effect that the board of directors of STC or CGI, as the case may be, is required to do so in any discussions order to discharge properly its fiduciary duties, considering, negotiating and approving and recommending to the shareholders of STC or negotiations withCGI, or providing any information toas the case may be, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), acquisition proposal which (A) was not received in violation of this Section 6.06, (B) if executed or consummated would be a Competing Transaction, (C) is not subject to financing and (D) the Company's Board board of Directors concludes directors of STC or CGI, as the case may be, determines in good faith (faith, after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, would result in a transaction more favorable to holders of Company Common Stock STC's or CGI's stockholders, as the case may be, than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as acquisition proposal, a "Superior Proposal"), (B) . Each party hereto shall notify the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing other parties hereto promptly if any information proposal or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested fromoffer, or any inquiry or contact with any person with respect thereto, regarding such discussions an acquisition proposal or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offersa Competing Transaction is made. The Company agrees that it will Each party hereto immediately shall cease and cause to be terminated any all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposala Competing Transaction. The Company agrees that it shall keep IHK informed, on a current basis, None of the status parties hereto shall release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party. Each party hereto shall use its best efforts to ensure that its officers, directors, employees and terms of subsidiaries and any investment banker or other advisor or representative retained by such proposals or offers and the status of any such discussions or negotiations.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative party are aware of the Company or any Company Subsidiary of the obligations undertaken restrictions described in this Section 6.056.06.
Appears in 2 contracts
Sources: Agreement and Plan of Merger and Reorganization (Cell Genesys Inc), Merger Agreement (Cell Genesys Inc)
No Solicitation of Transactions. (a) The Subject to Section 5.4(b), from and after the date hereof until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article 7, the Company agrees that neither it nor any Company Subsidiary shallshall not, and that it shall cause its the Company Subsidiaries and each the Company Subsidiary's Representatives not to, directly or indirectly, : (i) initiate, solicit, solicit or knowingly facilitate or encourage or otherwise facilitate (including without limitation by way of furnishing providing information) any inquiries or the making submission of any proposalinquiries, proposals or offers or any other efforts or attempts that constitute, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could may reasonably be expected to interfere lead to, any Acquisition Proposal or engage in any discussions or negotiations with the completion of the Merger respect thereto, (ii) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal, (iii) withdraw, change, amend, modify or qualify, or propose publicly to withdraw, change, amend, modify or qualify, in a manner adverse to Parent or the Purchaser, or otherwise make any statement or proposal inconsistent with, the Company Board Recommendation, (iv) enter into any merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person similar Contract relating to an Acquisition Proposal or engage enter into any Contract or agreement in any negotiations concerning an Acquisition Proposalprinciple requiring the Company to abandon, terminate or breach its obligations hereunder or fail to consummate the transactions contemplated hereby, or otherwise facilitate (v) resolve, propose or agree to do any effort of the foregoing (any action or attempt failure to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained act set forth in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; foregoing clauses (ii) engaging in any discussions or negotiations with), or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only or (v) (to the extent that, in any such case as is referred related to in clause the foregoing clauses (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's a “Change of Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offersRecommendation”). The Company agrees that it will shall immediately cease and cause to be terminated any existing activitiessolicitation, discussions encouragement, discussion or negotiations negotiation with any parties Persons conducted heretofore prior to the execution of this Agreement by the Company, the Company Subsidiaries or any of the Company Representatives with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, Proposal and cause to be returned or destroyed all confidential information provided by or on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiations.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative behalf of the Company or any Company Subsidiary to such Person to the extent that the Company is entitled to have such documents returned or destroyed.
(b) Notwithstanding anything to the contrary contained in Section 5.4(a), if at any time following the date hereof and prior to the Acceptance Time (i) the Company has received a bona fide written Acquisition Proposal from a third party, (ii) the Company has not breached this Section 5.4 in any material respect, (iii) the Company Board determines in good faith, after consultation with its financial advisors and outside counsel, that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Proposal and (iv) after consultation with its outside counsel, the Company Board determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties to the stockholders of the obligations undertaken Company under applicable law, then the Company may (A) furnish information with respect to the Company and the Company Subsidiaries to the Person making such Acquisition Proposal and (B) participate in discussions or negotiations with the Person making such Acquisition Proposal regarding such Acquisition Proposal; provided that the Company (x) shall notify Parent orally and in writing within 24 hours of any determination concerning an Acquisition Proposal pursuant to this Section 5.4(b), (y) will not, and will not allow the Company Subsidiaries and the Company Representatives to, disclose any information to such Person without first entering into an Acceptable Confidentiality Agreement and (z) will promptly provide to Parent any information concerning the Company or the Company Subsidiaries provided to such other Person which was not previously provided to Parent.
(c) The Company shall promptly notify Parent in writing of any Acquisition Proposal (and in no event later than 24 hours following the Company’s, any Company Subsidiary’s or any Company Representative’s receipt of the Acquisition Proposal) such notice to include the identity of the Person making such Acquisition Proposal and a copy of such Acquisition Proposal, including draft agreements or term sheets submitted in connection therewith (or, where no such copy is available, a reasonably detailed description of such Acquisition Proposal), including any modifications thereto. The Company shall keep Parent reasonably informed on a current basis (and in any event at Parent’s request and otherwise no later than 24 hours after the occurrence of any material changes, developments, discussions or negotiations) of the status of any Acquisition Proposal and shall provide Parent with copies of all written inquiries and correspondence with respect to such Acquisition Proposal no later than 24 hours following the receipt thereof. The Company shall not, and shall cause the Company Subsidiaries not to, enter into any Contract with any Person subsequent to the date of this Agreement, and neither the Company nor any of the Company Subsidiaries is party to any Contract, in each case, that prohibits the Company from providing such information to Parent. The Company shall not, and shall cause the Company Subsidiaries not to, terminate, waive, amend or modify any provision of, or grant permission under, any standstill or confidentiality Contract to which the Company or any Company Subsidiary is a party, and the Company shall, and shall cause the Company Subsidiaries to, enforce the provisions of any such agreement; provided, however, that notwithstanding the foregoing or any other provision of this Agreement, the Company may grant a waiver of a standstill or similar agreement if it determines in good faith, after consultation with outside counsel and financial advisors that such waiver is likely to lead to a Superior Proposal.
(d) Notwithstanding anything to the contrary contained in Section 5.4(a), if the Company receives an Acquisition Proposal which the Company Board concludes in good faith, after consultation with outside counsel and its financial advisors, constitutes a Superior Proposal, after giving effect to all of the adjustments to the terms of this Agreement which may be offered by Parent (including without limitation pursuant to clause (ii) below), the Company Board may at any time prior to the Acceptance Time, (x) effect a Change of Board Recommendation with respect to such Superior Proposal and/or (y) terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal; provided, however, that the Company shall not terminate this Agreement pursuant to the foregoing clause (y), and any purported termination pursuant to the foregoing clause (y) shall be void and of no force or effect, unless substantially concurrently with such termination the Company pays the Breakup Fee and otherwise complies with the provisions of Section 7.1(e) and Section 7.2; and provided further that the Company Board may not withdraw, modify or amend the Company Board Recommendation in a manner adverse to Parent pursuant to the foregoing clause (x) or terminate this Agreement pursuant to the foregoing clause (y) unless (A) the Company shall not have breached this Section 5.4 and (B):
(i) the Company shall have provided prior written notice to Parent, at least three Business Days in advance (the “Notice Period”), of its intention to take such action with respect to such Superior Proposal, which notice shall specify the material terms and conditions of such Superior Proposal (including without limitation the identity of the party making such Superior Proposal), and shall have contemporaneously provided a copy of the relevant proposed transaction agreements with the party making such Superior Proposal and other material documents, including without limitation the definitive agreement with respect to such Superior Proposal (the “Alternative Acquisition Agreement”); and
(ii) prior to effecting such Change of Board Recommendation or terminating this Agreement to enter into a definitive agreement with respect to such Superior Proposal, the Company shall, and shall cause the Company Representatives to, during the Notice Period, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal. In the event of any material revisions to the Superior Proposal, the Company shall be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.4(d) with respect to such new written notice.
(e) Notwithstanding anything to the contrary contained in Section 5.4(a), if the Company Board determines in good faith, after consultation with outside counsel, that the failure to take such action would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law, the Company Board may at any time prior to the Acceptance Time and solely in response to an Intervening Event effect a Change of Board Recommendation; provided, however, that the Company Board may not effect a Change of Board Recommendation unless the Company shall have provided prior written notice to Parent, at least three Business Days in advance, of its intention to take such action, which notice shall specify the facts, circumstances and other conditions giving rise thereto, and prior to effecting such Change of Board Recommendation, the Company shall, and shall cause the Company Representatives to, during such three Business Day period, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that a Change of Board Recommendation is no longer necessary; and provided, further, that the Company Board shall not be permitted to effect a Change in Recommendation pursuant to this Section 5.4(e) with respect to or in connection with any Acquisition Proposal (which shall be covered by and subject in all respects to Section 5.4(d)).
(f) The Company agrees that any material violation of the restrictions set forth in this Section 6.055.4 by any of the Company Representatives shall be deemed to be a material breach of this Agreement (including without limitation this Section 5.4) by the Company.
(g) Nothing contained in this Section 5.4 shall prohibit the Company Board from disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a) and Rule 14d-9 promulgated under the Exchange Act; provided, however, that any disclosure of a position contemplated by Rule 14e-2(a) or Rule 14d-9 promulgated under the Exchange Act other than a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, an express rejection of any applicable Acquisition Proposal or an express reaffirmation of its recommendation to its stockholders in favor of the Offer shall be deemed to be a Change of Board Recommendation.
Appears in 2 contracts
Sources: Merger Agreement (Lilly Eli & Co), Merger Agreement (Imclone Systems Inc)
No Solicitation of Transactions. (a) The During the Pre-Closing Period, the Company agrees that neither it nor any Company Subsidiary shall, and that it shall cause its the Company Subsidiaries and each the Company Subsidiary's Representatives (other than Company Representatives that are not directors, officers or employees, which the Company shall instruct and use commercially reasonable efforts to cause) to, directly (i) cease and cause to be terminated any existing solicitation, encouragement, discussion or indirectlynegotiation with any Third Party that may be ongoing with respect to an Acquisition Proposal, and (ii) request any such Third Party to promptly comply with its obligations under the applicable confidentiality agreement to return or destroy all confidential information concerning the Company and the Company Subsidiaries. Subject to Section 5.4(b), during the Pre-Closing Period, the Company shall not, and shall cause the Company Subsidiaries and the Company Representatives (other than Company Representatives that are not directors, officers or employees, which the Company shall instruct and use commercially reasonable efforts to cause) not to (x) solicit, initiate, solicitor knowingly facilitate or encourage any inquiry, encourage discussion, offer, proposal or request that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal, (y) engage in, enter into, continue or otherwise facilitate (including by way of furnishing information) participate in any inquiries discussions or the making of any proposalnegotiations with, or offer with respect furnish any non-public information relating to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary thatto, in any such case, could reasonably be expected or afford access to interfere with the completion books or records or officers of the Merger Company or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion Third Party with or provide any confidential information or data to any Person relating respect to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or (z) otherwise knowingly facilitate any effort or attempt to make an Acquisition Proposal.
(b) Notwithstanding anything to the contrary contained in Section 5.4(a), at any time following the date hereof and prior to adoption of this Agreement by the Required Company Stockholder Approval, but not after, the Company may (x) furnish non-public information to a Third Party in response to a request therefor by such Third Party who has made a bona fide written Acquisition Proposal that did not result from a violation of this Section 5.4, providing for the acquisition of over 50% of the assets (on a consolidated basis) or implement a majority of the voting power of the Equity Interests of the Company or (y) engage in discussions or negotiations with such Third Party with respect to such an Acquisition Proposal; provided that (1) prior to so furnishing such information, the Company receives from the Third Party an executed Acceptable Confidentiality Agreement, (2) any non-public information concerning the Company or any Company Subsidiary made available to any Third Party shall, to the extent not previously made available to Parent, be made available to Parent as promptly as reasonably practicable (and in no event later than twenty-four hours) after it is made available to such Third Party, (3) prior to taking the action described in clauses (x) or (y) above, the Company Board determines in good faith, after consultation with its financial and outside legal advisors, that such action is reasonably necessary in order for such directors to comply with the directors’ fiduciary duties under applicable Law and (4) in each such case referred to in clauses (x) or (y) above, the Company Board has determined in good faith based on the information then available and after consultation with its financial advisor that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal. Notwithstanding anything to the contrary set forth in Section 5.4 or elsewhere in this Agreement, the Company, the Company Subsidiaries and their Representatives may, in any event, contact any Third Party to (A) seek to clarify and understand the terms and conditions of any inquiry or proposal made by such Third Party following the date hereof solely to determine whether such inquiry or proposal constitutes or could reasonably be expected to lead to a Superior Proposal, and (B) inform such Third Party that has made or, to the Knowledge of the Company, is considering making an Acquisition Proposal of the provisions of this Section 5.4; provided that the Company shall notify Parent of its intention to contact such Third Party prior to doing so.
(c) Except as expressly permitted by this Section 5.4(c), neither the Company Board nor any committee thereof shall (i) withdraw, withhold, change, amend, modify or accept qualify, or otherwise propose publicly to withdraw, withhold, change, amend, modify or qualify, in a manner adverse to Parent, the Company Board Recommendation, (ii) fail to include the Company Board Recommendation in the Proxy Statement, (iii) approve or recommend, or publicly propose to approve or recommend, any Acquisition Proposal made or received after the date hereof (any of the actions described in clauses (i) through (iii) of this Section 5.4(c), an “Adverse Recommendation Change”), or (iv) cause or permit the Company to enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other definitive agreement (other than an Acceptable Confidentiality Agreement in accordance with Section 5.4(b)) with respect to any Acquisition Proposal (an “Alternative Acquisition Agreement”). Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to the receipt of the Required Company Stockholder Approval, but not after, the Company Board shall be permitted, subject to compliance with Section 5.4(d), (x) to terminate this Agreement to concurrently enter into a definitive Alternative Acquisition Agreement pursuant to Section 7.1(e) and/or (y) to effect any Adverse Recommendation Change with respect to a Superior Proposal or an Intervening Event, if the Company Board determines in good faith, after consultation with its financial and outside legal advisors, that such action is reasonably necessary in order for such directors to comply with the directors’ fiduciary duties under applicable Law.
(d) The Company Board shall not be entitled to effect an Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(e) unless (i) with respect to an Acquisition Proposal, such Acquisition Proposal was not solicited, initiated, encouraged or facilitated in breach of this Agreement and the Company Board determines in good faith, based on the information then available and after consultation with its financial advisor, that such Acquisition Proposal constitutes a Superior Proposal, (ii) the Company has provided written notice (a “Notice of Adverse Recommendation Change”) to Parent that the Company intends to take such action, which notice includes, as applicable, (x) written notice of the material terms of the Superior Proposal which enabled the Company Board to make the determination that the Acquisition Proposal is a Superior Proposal, or (y) in the case of any Adverse Recommendation Change that is related to an Intervening Event, a reasonably detailed summary of the basis of such action, (iii) during the four (4) calendar day period following Parent’s receipt of the Notice of Adverse Recommendation Change, the Company shall, and shall cause the Company Subsidiaries and the Company Representatives (other than Company Representatives that are not directors, officers or employees, which the Company shall instruct and use commercially reasonable efforts to cause) to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Superior Proposal ceases to constitute a Superior Proposal or, in the case of any Intervening Event, as would permit the Company Board (consistent with its fiduciary duties under applicable Law) to not make an Adverse Recommendation Change; and (iv) following the end of the four (4) calendar day period, the Company Board shall have determined in good faith, after consultation with its financial and outside legal advisors, taking into account any changes to this Agreement irrevocably offered in writing by Parent in response to the Notice of Adverse Recommendation Change or otherwise, that the Superior Proposal, as the case may be, giving rise to the Notice of Adverse Recommendation Change continues to constitute a Superior Proposal or, in the case of any Adverse Recommendation Change that is related to an Intervening Event, that such Adverse Recommendation Change would be reasonably necessary in order for the directors to comply with such directors’ fiduciary duties under applicable Law. In the event of any material amendment of such Superior Proposal or any material change to the facts and circumstances relating to the Intervening Event, the Company shall be required to issue a new Notice of Adverse Recommendation Change or otherwise comply again with the requirements of this Section 5.4(d); provided, however, that for purposes of this sentence, references to the four (4) calendar day period above shall be deemed to be references to a three (3) calendar day period.
(e) As promptly as reasonably practicable (and in any event within twenty four (24) hours) after receipt of any Acquisition Proposal or any request for non-public information or inquiry that would reasonably be expected to lead to an Acquisition Proposal, the Company shall provide Parent with written notice of the material terms and conditions of such Acquisition Proposal, request or inquiry, and the identity of the Person or group of Persons making any such Acquisition Proposal, request or inquiry. In addition, the Company shall provide Parent as promptly as reasonably practicable (and in any event within twenty four (24) hours) with written notice setting forth all such information as is reasonably necessary to keep Parent reasonably informed in all material respects of all oral or written communications regarding, and the status and material details (including material amendments or proposed material amendments) of, any such Acquisition Proposal, request or inquiry.
(f) Nothing contained in this Agreement shall prohibit the Company or the Company Board, directly or indirectly through its Representatives, from complying with its disclosure obligations under U.S. federal or state Law with regard to an Acquisition Proposal; provided, however, such disclosure will in no way eliminate or modify the effect that nothing contained in any action pursuant to such U.S. federal or state Law would otherwise have under this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiationsAgreement.
(bg) The From the date of this Agreement until the earlier of the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Article 7, the Company agrees that it will take the necessary steps shall not terminate, amend, modify or waive any provision of any confidentiality, “standstill” or similar agreement to promptly inform each Company Subsidiary and each Representative of which the Company or any Company Subsidiary is a party and shall enforce, to the fullest extent permitted under applicable Law, the provisions of any such agreement, including by obtaining injunctions to prevent any breaches of such agreements and to enforce specifically the obligations undertaken terms and provisions thereof. Notwithstanding anything to the contrary contained in this Section 6.05Agreement, the Company shall be permitted to terminate, amend, modify, waive or fail to enforce any provision of any confidentiality, “standstill” or similar obligation of any Person if the Company Board determines in good faith, after consultation with its outside legal counsel, that such action is reasonably necessary in order for the directors to comply with such directors’ fiduciary duties under applicable Law.
Appears in 2 contracts
Sources: Merger Agreement (B. Riley Financial, Inc.), Merger Agreement (United Online Inc)
No Solicitation of Transactions. (a) The Neither the Company agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, initiatethrough any officer, solicitdirector, encourage agent or otherwise facilitate (including by way of furnishing information) any inquiries or the making of any proposalotherwise, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under solicit, initiate or encourage the Exchange Act with regard to an submission of, any Acquisition Proposal; Proposal (as defined below) or (ii) engaging subject to Section 7.05(b), participate in any discussions or negotiations withregarding, or providing furnish to any person, any information with respect to, or otherwise cooperate in any Person way with respect to, or assist or participate in, facilitate or encourage, any unsolicited proposal that constitutes, or may reasonably be expected to lead to, a Acquisition Proposal.
(b) Except as set forth in response this Section 7.05(b), neither the Board nor any committee thereof shall (i) withdraw or modify, or propose to an unsolicited bona fide written withdraw or modify, in a manner adverse to Parent or Purchaser, the approval or recommendation by the Board or any such committee of this Agreement, the Offer, the Merger or any other Transaction, (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written enter into any agreement with respect to any Acquisition Proposal Proposal. Notwithstanding the foregoing, in the event that, prior to the holders time of Company Common Stock if and only acceptance for payment of Shares pursuant to the extent thatOffer, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action it is necessary for it required to act in a manner consistent with do so by its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Personlaw after having received advice from outside legal counsel, the Company's Board may withdraw or modify its approval or recommendation of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person Offer and the terms and conditions of any proposals or offers. Merger.
(c) The Company agrees that it will shall, and shall direct or cause its directors, officers, employees, representatives and agents to, immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore that may be ongoing with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiations.
(bd) information with respect to any Acquisition Proposal, the material terms and conditions of such Acquisition Proposal or request and the identity of the person making such Acquisition Proposal or request and (ii) any changes in any such Acquisition Proposal or request.
(e) The Company agrees that it will take agrees, except as required by the necessary steps Board's fiduciary duties under applicable law after having received advice from outside legal counsel, not to promptly inform each Company Subsidiary and each Representative of release any third party from, or waive any provision of, any confidentiality or standstill agreement to which the Company or any Company Subsidiary of the obligations undertaken in this Section 6.05is a party.
Appears in 2 contracts
Sources: Merger Agreement (Ericsson MPD Acquisition Corp), Merger Agreement (Microwave Power Devices Inc)
No Solicitation of Transactions. (a) The (i) Except as set forth in this Section 7.5, until the earlier of the Control Date or the termination of this Agreement in accordance with the terms hereof, the Company agrees that neither it and the Company Subsidiaries shall not, nor shall they authorize or knowingly permit any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's of their respective Representatives not to, directly or indirectlyindirectly (A) solicit, initiate, solicit, knowingly encourage or otherwise knowingly facilitate (including by way of furnishing information) any inquiries Acquisition Proposal or the making of any proposal, or offer with respect thereof to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary thatits shareholders; (B) enter into, in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, continue or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging participate in any discussions or negotiations withregarding, or providing furnish any non-public information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, otherwise cooperate in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received byway with, any such information requested fromperson (other than Parent, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of Purchaser and their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore Representatives) with respect to any Acquisition Proposal; (C) waive, terminate, modify or fail to enforce any provision of any contractual “standstill,” confidentiality or similar obligation of any person other than Parent or its affiliates; or (D) take any action to render any provision of any “fair price,” “moratorium,” “control share acquisition,” “business combination” or other similar anti-takeover statute or any restrictive provision of any applicable anti-takeover provision in the Company’s organizational documents, in each case inapplicable to any person (other than Parent, Purchaser or any of their affiliates) or any Acquisition Proposal (and to the extent permitted thereunder, the Company shall promptly take all steps necessary to terminate any waiver that may have been heretofore granted to any such person or Acquisition Proposal under any such provisions). The Company agrees that it shall keep IHK informed, on a current basis, Any breach of the status and terms foregoing provisions of this Section 7.5 by any such proposals or offers and the status of any such discussions or negotiations.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company Subsidiaries or any the Company’s or the Company Subsidiary of Subsidiaries’ Representatives shall be deemed to be a breach by the obligations undertaken in this Section 6.05Company.
Appears in 2 contracts
Sources: Merger Agreement (Actel Corp), Merger Agreement (Microsemi Corp)
No Solicitation of Transactions. (a) The Each of the Company and Parent agrees that neither it nor any Company Subsidiary of its Subsidiaries shall, and that it shall use its reasonable best efforts to cause its and each Company Subsidiary's its Subsidiaries' Representatives not to, directly or indirectly: (i) solicit, initiate, solicitencourage, encourage knowingly facilitate or otherwise induce any inquiry with respect to, or the making, submission or announcement of, any Acquisition Proposal, (ii) participate in any discussions or negotiations regarding, or furnish to any person any nonpublic information with respect to, or take any other action to facilitate (including by way of furnishing information) any inquiries or the making of any proposal, proposal that constitutes or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could may reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information lead to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (except to the extent specifically permitted pursuant to this Section 6.4), (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, engage in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore person with respect to any Acquisition Proposal, except to notify such person as to the existence of these provisions (except to the extent specifically permitted pursuant to this Section 6.4), (iv) approve, endorse or recommend any Acquisition Proposal with respect to it (except to the extent specifically permitted pursuant to this Section 6.4), or (v) enter into any letter of intent or similar document or any agreement, commitment or understanding contemplating or otherwise relating to any Acquisition Proposal or a transaction contemplated thereby (except for confidentiality agreements specifically permitted pursuant to Section 6.4(c)). The Company agrees that it shall keep IHK informedExcept as permitted by Section 6.4(c) hereof and subject to compliance with its terms, on a current basis, each of the status Company and terms of any such proposals or offers Parent shall immediately terminate, and the status of any such shall cause its Subsidiaries and its and its Subsidiaries' Representatives to immediately terminate, all discussions or negotiations, if any, with any third party with respect to, or any that could reasonably be expected to lead to or contemplate the possibility of, an Acquisition Proposal. Each of the Company and Parent shall immediately demand that each person which has heretofore executed a confidentiality agreement with it or any of its Affiliates or Subsidiaries or any of its or its Affiliates' or Subsidiaries' Representatives with respect to such person's consideration of a possible Acquisition Proposal to immediately return or destroy (which destruction shall be certified in writing by such person to such party hereunder) all confidential information heretofore furnished by such party or any of its Affiliates or Subsidiaries or any of its or its Affiliates' or Subsidiaries' Representatives to such person or any of such person's Affiliates or Subsidiaries or any of such person's or such person's Affiliates' or Subsidiaries' Representatives.
(b) The Promptly, but in any event within twenty-four (24) hours, after receipt of any Acquisition Proposal by the Company agrees that or Parent, or any request for nonpublic information or inquiry which it will take reasonably believes could lead to an Acquisition Proposal, such party shall provide the necessary steps other party with written notice of the material terms and conditions of such Acquisition Proposal, request or inquiry, and the identity of the person or group making any such Acquisition Proposal, request or inquiry, and a copy of all written materials provided in connection with such Acquisition Proposal, request or inquiry. After receipt of the Acquisition Proposal, request or inquiry by the Company or Parent, it shall promptly keep the other party hereunder informed in all material respects of the status and details (including material amendments or proposed material amendments) of any such Acquisition Proposal, request or inquiry and shall promptly provide to promptly inform each it a copy of all written materials subsequently provided in connection with such Acquisition Proposal, request or inquiry.
(c) If, prior to the Company Subsidiary and each Representative Stockholders Meeting in the case of the Company or any Parent Stockholders Meeting in the case of Parent, either the Company Subsidiary or Parent receives an Acquisition Proposal (for purposes of the obligations undertaken procedures set forth in this Section 6.056.4(c), any Acquisition Proposal received prior to the date hereof and which is still outstanding as of the date hereof shall be deemed to have been received immediately after execution and delivery hereof) which (i) constitutes a Superior Proposal or (ii) which its Board of Directors in good faith concludes proposes consideration that is more favorable to its stockholders than the transactions contemplated by this Agreement and which could reasonably be expected to result in a Superior Proposal in all other respects, it shall promptly, but in any event in less than 3 days, provide to the other party hereunder written notice that shall state expressly (A) that it has received an Acquisition Proposal which constitutes a Superior Proposal or which could reasonably be expected to result in a Superior Proposal, and (B) the identity of the party making such Acquisition Proposal and the material terms and conditions of the Acquisition Proposal (the "Superior Proposal Notice") and may then take the following actions:
(1) furnish nonpublic information to the third party making such Acquisition Proposal, provided, that (x) prior to so furnishing, the furnishing party receives from the third party an executed confidentiality agreement containing terms no more favorable to the third party than the terms under the Confidentiality Agreement and customary standstill provisions, and (y) contemporaneously with furnishing any such nonpublic information to such third party, the furnishing party furnishes a copy of such nonpublic information to the other party hereunder (to the extent such nonpublic information has not been previously so furnished); and
(2) engage in negotiations with the third party with respect to the Acquisition Proposal.
(d) For a period of not less than five Business Days after receipt by a party from the other party of each Superior Proposal Notice, the other party shall, if requested by the receiving party, negotiate in good faith with the receiving party to revise this Agreement so that the Acquisition Proposal that constituted a Superior Proposal no longer constitutes a Superior Proposal.
(e) In response to the receipt of a Superior Proposal that has not been withdrawn and continues to constitute a Superior Proposal after compliance by the party receiving the Superior Proposal with Section 6.4(d), the Board of Directors of such party may withhold or withdraw the Company Recommendation or the Parent Recommendation, as the case may be, and, in the case of a Superior Proposal that is a tender or exchange offer made directly to its stockholders, may recommend that its stockholders accept the tender or exchange offer (any of the foregoing actions, whether by the Board of Directors or a committee thereof, a "Change of Recommendation"), if both of the following conditions in Sections 6.4(e)(i) and 6.4(e)(ii) are met:
(i) the Company Stockholders' Meeting or the Parent Stockholders' Meeting, as the case may be, has not occurred; and
(ii) the Board of Directors of such party has concluded in good faith, following consultation with its outside legal counsel, that, in light of such Superior Proposal, the failure of the Board of Directors to effect a Change of Recommendation would result in a breach of its fiduciary obligations to its stockholders under applicable Law.
(f) Each of the Company and Parent agrees that it shall not submit to the vote of its stockholders any Acquisition Proposal (whether or not a Superior Proposal) or propose to do so. Nothing contained in this Agreement shall be deemed to restrict the Company or Parent from complying with Rules 14d-9 or 14e-2 under the Exchange Act or be deemed to restrict the Company or Parent from making such other disclosures as may be required by federal securities laws or applicable fiduciary duties.
(g) Notwithstanding anything to the contrary contained in this Agreement, the prohibitions contained in Sections 5.l(j), 5.1(l), 5.2(j) and 5.2(l) shall not be applicable with respect to a Person who has submitted a Superior Proposal to the Company or Parent, as the case may be.
Appears in 2 contracts
Sources: Merger Agreement (Variagenics Inc), Merger Agreement (Hyseq Inc)
No Solicitation of Transactions. (a) The Company agrees that neither that, from the date hereof until the earlier of the Effective Time or the date of termination of this Agreement, it nor any Company Subsidiary shallshall not, and that it shall cause its Subsidiaries and each Company Subsidiary's its Subsidiaries’ Representatives retained by it or any of its Subsidiaries not to, directly or indirectly, solicit, initiate, solicit, knowingly encourage or otherwise facilitate (including by way of furnishing information) knowingly facilitate, or furnish or disclose non-public information in furtherance of, any inquiries or the making of any proposalproposal or offer which constitutes, or may reasonably be expected to lead to, any proposal or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involvingany Alternative Transaction, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal negotiate or engage in discussions with any negotiations concerning an Acquisition ProposalPerson (other than Purchaser, Merger Sub or otherwise facilitate their respective Representatives) with respect to any effort Alternative Transaction; provided that, Company and its Representatives may contact any Person making such proposal and its Representatives to ascertain facts or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent clarify terms and conditions for the Company or sole purpose of the Company's Board of Directors from of Company informing itself about such proposal and the Person that made it, and at any time prior to the adoption of this Agreement by Company’s stockholders (i) complying with Rule 14e-2 promulgated under and in no event after the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations withadoption of this Agreement by Company’s stockholders), or providing any Company may furnish information to, and negotiate or engage in discussions with, any Person in response to an unsolicited party who delivers a bona fide written Acquisition Proposal proposal for an Alternative Transaction which was made and not solicited, initiated, knowingly encouraged or knowingly facilitated by any such Person; Company or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to its Representatives after the holders of Company Common Stock date hereof, if and only to so long as the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors reasonably determines in good faith after consultation with legal its outside counsel that the failure to provide such action information or engage in such negotiations or discussions is necessary for it reasonably likely to act in a manner consistent be inconsistent with its fiduciary duties to the stockholders of Company under applicable lawLaw and reasonably determines in good faith that such proposal is, (C) prior or is reasonably likely to providing any information or data lead to any Person in connection with a Superior Proposal by Proposal. Company shall notify Purchaser promptly (but in any such Person, the Company's Board event within 48 hours) of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicatingits Subsidiaries or any of its or its Subsidiaries’ Representatives, in connection with such notice, indicating the name of such Person and providing to Purchaser a summary of the material terms of such proposal or offer for an Alternative Transaction. Prior to providing any information or data to, or entering into any negotiations or discussions with, any Person, or making any such recommendation, in connection with a proposal or offer for an Alternative Transaction, Company shall receive from such Person an executed confidentiality agreement containing terms and conditions provisions at least as restrictive to Company than those contained in the Confidentiality Agreement (it being understood, however, that such confidentiality agreement need not contain any obligation precluding discussions or negotiations relating to the proposal or offer from such Person and shall not contain any provision that requires exclusive negotiations with such Person). Company agrees that it will keep Purchaser informed, on a prompt basis, of the status and material terms of any such proposals or offersoffers and the status of any material developments in respect of any such discussions or negotiations and that it will deliver to Purchaser a summary of any material changes to any such proposals or offers and all nonpublic information being furnished to such Person that was not previously provided to Purchaser. The On the date hereof, Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties Third Parties conducted heretofore prior to the date hereof with respect to any Acquisition ProposalAlternative Transaction. The Notwithstanding anything to the contrary contained herein, Company agrees that it shall keep IHK informedbe permitted to terminate, on a current basisamend, of the status and terms modify, waive or fail to enforce any provision of any confidentiality or standstill agreement to which it is a party if the Board of Directors of Company determines in good faith, after consultation with its outside legal counsel, that the failure to take such proposals action is reasonably likely to be inconsistent with its fiduciary duties to the stockholders of Company under applicable Law and if Company terminates, similarly amends, waives, fails to enforce or offers and similarly modifies the status of any such discussions or negotiationsstandstill provision in the Confidentiality Agreement.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken in this Section 6.05.
Appears in 2 contracts
Sources: Merger Agreement (Wellpoint, Inc), Merger Agreement (Amerigroup Corp)
No Solicitation of Transactions. (a) The Neither the ------------------------------- Company agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, initiatethrough any officer, director, employee, agent or otherwise, (i) solicit, initiate or encourage or otherwise facilitate (including by way of furnishing information) any inquiries or the making of any proposal, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities submission of, the Company or any Company Subsidiary that, in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging except as required by the fiduciary duties of the Board under applicable law after having received advice from outside legal counsel, participate in any discussions or negotiations withregarding, or providing furnish to any person, any information (provided that prior to furnishing such information, the Company enters into a customary confidentiality agreement on terms no less favorable to the Company than those contained in the Confidentiality Agreement) with respect to, or otherwise cooperate in any Person way with respect to, or assist or participate in, facilitate or encourage, any unsolicited proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal.
(b) Except as set forth in response this Section 7.05(b), neither the Board nor any committee thereof shall (i) withdraw or modify, or propose to an unsolicited bona fide written withdraw or modify, in a manner adverse to Parent or Purchaser, the approval or recommendation by the Board or any such committee of this Agreement, the Offer or the Merger, (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written enter into any agreement with respect to any Acquisition Proposal Proposal. Notwithstanding the foregoing, in the event that, prior to the holders time of Company Common Stock if and only acceptance for payment of Shares pursuant to the extent thatOffer, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action it is necessary for it required to act in a manner consistent with do so by its fiduciary duties under applicable lawlaw after having received advice from outside legal counsel, the Board may withdraw or modify its approval or recommendation of the Offer and the Merger, but only to terminate this Agreement in accordance with Section 9.01(d)(ii) (C) prior and, concurrently with such termination, cause the Company to providing any information or data enter into an agreement with respect to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and Proposal).
(Dc) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will shall, and shall direct or cause its directors, officers, employees, representatives and agents to, immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore that may be ongoing with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiations.
(bd) The Company agrees that it will take shall promptly advise Parent orally (within one business day) and in writing (within two business days) of (i) any Acquisition Proposal or any request for information with respect to any Acquisition Proposal, the necessary steps to promptly inform each Company Subsidiary material terms and each Representative conditions of such Acquisition Proposal or request and the identity of the Company person making such Acquisition Proposal or request and (ii) any Company Subsidiary of the obligations undertaken changes in this Section 6.05any such Acquisition Proposal or request.
Appears in 2 contracts
Sources: Merger Agreement (Siemens Aktiengesellschaft/Adr), Merger Agreement (Siemens Aktiengesellschaft/Adr)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary shallnor any of the directors, officers or employees of it or any Subsidiary will, and that it shall will instruct and use its reasonable best efforts to cause its and each Company its Subsidiaries' directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment banker, attorney or accountant retained by it or any Subsidiary's Representatives ) not to, directly or indirectly, initiate, (i) solicit, initiate or knowingly encourage or otherwise facilitate (including by way of furnishing nonpublic information) ), or take any other action to knowingly facilitate, any inquiries or the making of any proposalproposal or offer (including any proposal or offer to its shareholders) that constitutes, or may reasonably be expected to lead to, any Competing Transaction, or (ii) enter into or maintain or continue discussions or negotiations with any person or entity in furtherance of such inquiries or to obtain a proposal or offer for a Competing Transaction, or (iii) agree to, approve, endorse or recommend any Competing Transaction or enter into any letter of intent or other contract, agreement or commitment contemplating or otherwise relating to any Competing Transaction, or (iv) authorize or permit any of the officers, directors or employees of the Company or any of its Subsidiaries, or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any of its Subsidiaries, to take any such action. The Company shall notify Parent as promptly as practicable (and in any event within one business day after the Company attains knowledge thereof), orally and in writing, if any proposal or offer, or any inquiry or contact with any person with respect thereto, regarding a Competing Transaction is made, specifying the material terms and conditions thereof and the identity of the party making such proposal or offer or inquiry or contact (including material amendments or proposed material amendments). The Company shall, and shall direct or cause its and its Subsidiaries' directors, officers, employees, representatives and agents to, immediately cease and terminate any discussions or negotiations with any parties that may have been conducted heretofore with respect to a Competing Transaction. The Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party and the Company also agrees to promptly request each person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution acquisition of stock or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, otherwise) the Company or any Company Subsidiary thatSubsidiary, in any if any, to return (or if permitted by the applicable confidentiality agreement, destroy) all confidential information heretofore furnished to such case, could reasonably be expected to interfere with the completion person by or on behalf of the Merger Company or any Subsidiary and, if requested by Parent, to use its reasonable best efforts to enforce such person's obligation to do so. The Company shall not take any action to make the provisions of Section 351.407, Section 351.015 or Section 351.459 of the MGBCL and Article X of the Company's Articles of Incorporation inapplicable to any transaction other the transactions contemplated by this Agreement Agreement. Notwithstanding anything to the contrary contained in this Agreement, (x) neither the Company nor the Company Board shall be prohibited from taking and disclosing to its shareholders a position contemplated by Rule 14d-9 and Rule 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act (or any similar communication to shareholders in connection with the making or amendment of a tender offer or exchange offer) or from making any disclosure required under applicable Law or the rules of the Nasdaq National Market, and (y) any "stop-look-and-listen" communication by the Company or the Company Board to the shareholders of the Company pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or similar communication to the shareholders of the Company in connection with the making or amendment of a tender offer or exchange offer containing the substance of a "stop-look-and-listen" communication pursuant to such Rule 14d-9(f)) shall not be considered a Change in the Company Recommendation (as hereinafter defined) or an approval, recommendation or proposal to approve or recommend any Competing Transaction.
(b) Notwithstanding anything to the contrary in this Section 7.04, prior to obtaining the Requisite Shareholder Approval, in the event a person (a "Third Party") makes an unsolicited, written, bona fide proposal or offer regarding a Competing Transaction, (A) the Company and its Subsidiaries, directors, officers, employees, agents, advisors and other representatives (including, without limitation, any investment broker, attorney or accountant retained by the Company or any Subsidiary) may furnish information to such Third Party (it being understood that any such information furnished to a Third Party not previously furnished to Parent shall be contemporaneously furnished to Parent), and enter into and conduct discussions and negotiations with such Third Party, regarding such proposal or offer, and (B) the Company may release the Third Party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party to the extent reasonably necessary to permit the Third Party to make and pursue the proposal or offer; provided, however, that, prior to furnishing any such information, conducting any such discussions and negotiations or releasing or waiving any such provisions, the Company Board shall have (i) determined, in its good faith judgment (after having received the advice of its financial advisor and outside legal counsel (who may be the Company's regularly engaged independent legal counsel)), that such proposal or offer constitutes or may be reasonably expected to lead to a Superior Proposal, (ii) determined, in its good faith judgment after consultation with independent legal counsel (that may be the Company's regularly engaged independent legal counsel), that a failure to furnish such information, enter into such discussions and negotiations or release or waive such provisions would be inconsistent with its fiduciary duties to the Company or its shareholders under applicable Law, (iii) provided prior written notice to Parent of its intent to furnish information to, or enter into discussions with, the Third Party, and (iv) obtained from the Third Party an executed confidentiality agreement on terms no less favorable to the Company in all material respects than those contained in the Confidentiality Agreement (it being hereinafter referred understood that such confidentiality agreement and any related agreements shall not include any provision calling for any exclusive right to negotiate with such party or having the effect of prohibiting the Company from satisfying its obligations under this Agreement).
(c) Except as an "Acquisition Proposal"set forth in this Section 7.04(c). The , neither the Company further agrees that neither it Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify, in a manner adverse to Parent or Purchaser, the approval or recommendation by the Company Subsidiary shallBoard or any such committee of this Agreement and the Merger (a "Change in the Company Recommendation") or approve or recommend, and that it shall or cause its and each or permit the Company Subsidiary's Representatives not to enter into any letter of intent, agreement or obligation with respect to, directly any Competing Transaction. Notwithstanding the foregoing or indirectlyanything else to the contrary in this Section 7.04(c), have any discussion with or provide any confidential information or data prior to any Person relating to obtaining the Requisite Shareholder Approval, if the Company Board has determined, in its good faith judgment (after having received the advice of its financial advisor and outside legal counsel (who may be the Company's regularly engaged independent legal counsel)), that an Acquisition Proposal or engage in any negotiations concerning an Acquisition unsolicited, written, bona fide offer from a Third Party constitutes a Superior Proposal, or otherwise facilitate any effort or attempt then the Company may terminate this Agreement pursuant to make or implement an Acquisition Proposal or accept an Acquisition Section 9.01(h) and enter into a definitive agreement with respect to such Superior Proposal; provided, however, that, (x) prior to taking any such action contemplated by this Section 7.04(c), the Company Board shall have determined in its good faith judgment after consultation with independent legal counsel (who may be the Company's regularly engaged independent legal counsel), that nothing contained in this Agreement shall prevent a failure to take any such action would be inconsistent with its fiduciary duties to the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated its shareholders under the Exchange Act with regard to an Acquisition Proposalapplicable Law; (iiy) engaging prior to entering into a definitive agreement for such a Superior Proposal (excluding a confidentiality agreement of the type referenced in any discussions or negotiations withSection 7.04(b)), or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent thatnotifies Parent, in any writing at least three business days prior to doing so, of its intention to enter into such case as is referred to in clause (ii) or (iii)definitive agreement, (A) specifying the Company's material terms of such proposed definitive agreement and identifying the person making such Superior Proposal, and Parent does not make, within three business days of receipt of such written notification, an offer that the Company Board of Directors concludes determines in good faith (after consultation with having received the advice of its financial advisor and outside legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) who may be the Company's regularly engaged independent legal counsel)) is at least as favorable from a financial point of view to the shareholders of the Company as such Superior Proposal, it being understood that the Company shall not enter into any definitive agreement with respect to such Superior Proposal prior to the expiration of such three business day period; and (z) the Company shall pay the Fee required under Section 9.03(a)(ii) of this Agreement to Parent simultaneously with any termination of this Agreement in accordance with the terms of this Section 7.04(c). In addition, notwithstanding the foregoing or anything else to the contrary in this Section 7.04, the Company Board of Directors determines may make a Change in the Company Recommendation if it determines, in its good faith judgment after consultation with independent legal counsel (who may be the Company's regularly engaged independent legal counsel), that such action is necessary for it to act in a manner consistent do otherwise would be inconsistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiations.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken in this Section 6.05its shareholders under applicable Law.
Appears in 2 contracts
Sources: Merger Agreement (Labone Inc/), Merger Agreement (Quest Diagnostics Inc)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary shallwill, and will cause each of its Subsidiaries to, and its and their respective officers, directors and representatives to, immediately cease any existing solicitations, discussions or negotiations with any Person that it has made or indicated an intention to make an Acquisition Proposal.
(b) The Company shall not, and shall cause its Subsidiaries and each Company Subsidiary's Representatives any of their respective directors, officers and representatives not to, directly or indirectly(i) solicit, initiate, solicit, knowingly encourage or otherwise facilitate (including by way of furnishing non-public information) any inquiries or the making of any proposal, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate (ii) initiate, participate in or knowingly encourage any effort discussions or attempt to make or implement an Acquisition Proposal or accept negotiations regarding an Acquisition Proposal; provided, however, that, at any time prior to the Company Stockholder Approval, if the Company receives a bona fide Acquisition Proposal or a proposal that nothing contained in may reasonably be expected to lead to an Acquisition Proposal that was not solicited after the date of this Agreement shall prevent or that did not otherwise result from a breach of this Section 6.04, the Company may furnish, or cause to be furnished, non-public information with respect to the Company's Company and its Subsidiaries to the Person who made such proposal and may participate in discussions and negotiations regarding such proposal if (A) each of the Company Board and the Special Committee determines in good faith, after consultation with its financial advisor and outside counsel, that such action is necessary in order for such directors to comply with the directors’ statutory duties under Section 2-405.1 of Directors from the MGCL and fiduciary duties under the Company Charter, (B) each of the Company Board and the Special Committee determines in good faith, after consultation with its financial advisor, that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably likely to result in a Superior Proposal, and (C) prior to taking such action, the Company enters into a confidentiality agreement with respect to such proposal that contains confidentiality provisions no less restrictive than the Confidentiality Agreement. The Company shall promptly (and, in any event, within 24 hours) notify Parent after receipt by the Company of any Acquisition Proposal, including the material terms and conditions thereof, to the extent known, the identity of the third party making any proposal and any material change in the status of discussions or negotiations (including any material amendments to the proposal) between the Company and the Person making such proposal.
(c) Prior to the Effective Time the Company Board and the Special Committee shall not (i) complying with Rule 14e-2 promulgated under withdraw, qualify or modify or publicly propose to withdraw, qualify or modify in a manner adverse to Parent or Purchaser, the Exchange Act with regard to an Acquisition Proposal; Company Recommendation or (ii) engaging in any discussions approve, adopt or negotiations withrecommend, or providing any information topublicly propose to approve, any Person in response to adopt or recommend, an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of the Company Common Stock if and only Stock; provided, however, that in the event an Acquisition Proposal is made prior to the extent thatCompany Stockholder Approval, each of the Company Board and the Special Committee may take such action if the Company has complied with the notice provisions set forth in any such case as is referred to in clause (iithe last sentence of Section 6.04(b) or (iii), (A) the Company's Board of Directors concludes and each has determined in good faith (x) after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with outside legal counsel that such action is necessary in order for it such directors to act in a manner consistent comply with its the directors’ statutory duties under Section 2-405.1 of the MGCL and fiduciary duties under applicable lawthe Company Charter and (y) after consultation with its financial advisor and outside legal counsel, (C) that such Acquisition Proposal is a Superior Proposal. In the event that the Company Board and the Special Committee comply with their respective obligations in the preceding sentence, the Company may enter into a definitive agreement to effect a Superior Proposal, but not prior to providing any information or data such time as the Company has provided Parent with written notice that the Company has elected to any Person in connection terminate this Agreement pursuant to Section 8.01(e) and otherwise complied with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained ’s obligations in the Confidentiality Agreement preceding sentence and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiationsSection 8.01(e).
(bd) The Nothing contained in this Section 6.04 shall prohibit the Company agrees that it will take from at any time taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the necessary steps Exchange Act or making any disclosure required by Rule 14a-9 promulgated under the Exchange Act or Item 1012(a) of Regulation M-A or from making any other disclosure to promptly inform each Company Subsidiary and each Representative its stockholders or in any other regulatory filing if, in the good faith judgment of the Company Board and the Special Committee, based on the advice of their respective outside counsel, failure to so disclose would be inconsistent with their or any Company Subsidiary of the Company’s obligations undertaken under applicable Law (it being understood that nothing in this Section 6.056.04(d) shall affect Parent’s termination rights under Section 8.01(f)).
Appears in 2 contracts
Sources: Merger Agreement (CNL Retirement Properties Inc), Merger Agreement (Health Care Property Investors Inc)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary shallEach of AmSurg and Holdings shall immediately cease, and that it shall cause its respective Subsidiaries and Representatives to immediately cease, any discussions or negotiations with any Person that may be ongoing with respect to a Competing Proposal, or any proposal that could reasonably be expected to lead to a Competing Proposal, and shall request to have returned promptly to AmSurg or Holdings, as applicable, or destroyed any confidential information that has been provided in any such discussions or negotiations. From the date hereof until the earlier of the Merger 2 Effective Time or the date of termination of this Agreement in accordance with Article 7, each Company Subsidiary's of AmSurg and Holdings shall not, and shall cause its respective Subsidiaries and Representatives not to, directly or indirectly, initiate, (i) solicit, initiate or knowingly encourage or otherwise facilitate induce (including by way of furnishing information) information which has not been previously publicly disseminated), or take any other action designed to facilitate, any inquiries or the making of any proposalproposal which constitutes, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not lead to, directly any Competing Proposal, or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or (ii) engage in any discussions or negotiations concerning an Acquisition Proposal, or otherwise facilitate regarding any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Competing Proposal; provided, however, that (x) such party may ascertain facts from the Person making an unsolicited Competing Proposal for the sole purpose of the AmSurg Board or the Holdings Board, as applicable, informing itself about the terms of such Competing Proposal and the Person that made it and (y) if, prior to obtaining the AmSurg Shareholder Approval (in the case of AmSurg) or the Holdings Stockholder Approval (in the case of Holdings) and following the receipt of a bona fide written Competing Proposal made after the date hereof that the AmSurg Board or Holdings Board, as applicable, determines in good faith (after receiving advice of its financial advisor and of its outside legal counsel) is or could reasonably be expected to lead to a Superior Proposal and that was not, directly or indirectly, solicited, initiated or knowingly encouraged in violation of this Section 5.4, the AmSurg Board or the Holdings Board, as applicable, determines in good faith, after consultation with outside legal counsel, that a failure to take action with respect to such Competing Proposal, as applicable, would be inconsistent with its fiduciary duties to AmSurg’s shareholders or Holdings’s stockholders, as applicable, under applicable Law, AmSurg or Holdings may, in response to such Competing Proposal, as applicable, and subject to compliance with Section 5.4(c), (A) furnish information with respect to AmSurg or Holdings, as applicable, to the Person making such Competing Proposal pursuant to an Acceptable Confidentiality Agreement and (B) engage in discussions or negotiations with such Person regarding such Competing Proposal. Except as expressly permitted by this Section 5.4, each of Holdings and AmSurg shall not, and shall cause their respective Subsidiaries and Representatives not to, from and after the date of this Agreement until the earlier of the Merger 2 Effective Time or the date, if any, on which this Agreement is terminated pursuant to Article 7, directly or indirectly (1) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend or enter into, any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar definitive agreement (other than an Acceptable Confidentiality Agreement) with respect to any Competing Proposal; (2) take any action to make the provisions of any takeover statute inapplicable to any transactions contemplated by a Competing Proposal; (3) terminate, amend, release, modify or knowingly fail to enforce any provision of, or grant any permission, waiver or request under, any standstill, confidentiality or similar agreement entered into by the applicable party in respect of or in contemplation of a Competing Proposal (other than to the extent the Holdings Board or the AmSurg Board, as applicable, determines in good faith after consultation with its outside legal counsel, that failure to take any of such actions under clause (3) would be inconsistent with its fiduciary duties under applicable Law), or (4) propose to do any of the foregoing. For the avoidance of doubt, nothing contained in this Agreement Section 5.4(a) shall prevent relieve any party from its obligations under Section 5.6.
(b) Notwithstanding any other provision of this Agreement, including Section 5.3 but subject to compliance with this Section 5.4, prior to receipt of the Company AmSurg Shareholder Approval, the AmSurg Board may, or, prior to receipt of the Holdings Stockholder Approval, the Holdings Board may, in response to any bona fide written Competing Proposal that was not, directly or the Company's Board indirectly, solicited, initiated or knowingly encouraged in violation of Directors from this Section 5.4, effect an AmSurg Adverse Recommendation Change or a Holdings Adverse Recommendation Change, as applicable, if and only if (i) complying the AmSurg Board or the Holdings Board, as applicable, concludes in good faith, after consultation with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; AmSurg’s or Holdings’s outside financial advisors and outside legal counsel, that such Competing Proposal constitutes a Superior Proposal and (ii) engaging the Holdings Board or the AmSurg Board, as applicable, provides the other party five (5) Business Days prior written notice of its intention to take such action (a “Competing Proposal Notice”), which notice shall include the information with respect to such Competing Proposal that is specified in Section 5.4(c) (it being agreed that neither the delivery of such notice by a party nor any discussions public announcement thereof that such party determines it is required to make under applicable Law shall constitute an AmSurg Adverse Recommendation Change or negotiations witha Holdings Adverse Recommendation Change, as applicable, unless and until such party shall have failed at or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal prior to the holders end of Company Common Stock if and only to the extent that, in any such case as is period referred to in clause (iiiii) below (and, upon the occurrence of such failure, such notice and such public announcement shall constitute an AmSurg Adverse Recommendation Change or a Holdings Adverse Recommendation Change, as applicable) to publicly announce that it (A) is recommending the Transactions and (B) has determined that such other Competing Proposal (taking into account (x) any modifications or adjustments made to the Transactions agreed to by the other party in writing and (y) any modifications or adjustments made to such other Competing Proposal) is not a Superior Proposal and has publicly rejected such Competing Proposal); (iii) during the five (5) Business Days following such written notice (the “Negotiation Period”), if requested by the other party, the Board of Directors effecting the recommendation change and its Representatives have negotiated in good faith with the other party regarding any revisions to the terms of the Transactions proposed by the other party in response to such Competing Proposal; and (iv) at the end of the five (5) Business Day period described in the foregoing clause (iii), the AmSurg Board or Holdings Board, as applicable, concludes in good faith, after consultation with AmSurg’s or Holdings’s outside legal counsel and financial advisors (A) and taking into account any adjustment or modification of the Company's terms of this Agreement to which the other party has agreed in writing to make to the terms of the Transactions), that the Competing Proposal continues to be a Superior Proposal and, after consultation with AmSurg’s or Holdings’s outside legal counsel, that the failure to make an AmSurg Adverse Recommendation Change or Holdings Adverse Recommendation Change, as applicable, would be inconsistent with the exercise by the AmSurg Board or Holdings Board of Directors concludes its fiduciary duties to the shareholders of AmSurg or stockholders of Holdings under applicable Law. Any material amendment or modification to any Competing Proposal shall require a new Competing Proposal Notice and the Negotiation Period shall be extended by an additional three (3) Business Days from the date of receipt of such new Competing Proposal Notice.
(c) In addition to the obligations of Holdings and AmSurg set forth in Section 5.4(a) and Section 5.4(b), Holdings or AmSurg shall promptly, and in any event no later than 24 hours, after it receives (i) any Competing Proposal or indication by any Person that it intends to make or is considering making a Competing Proposal, (ii) any request for non-public information relating to Holdings or AmSurg or their respective Subsidiaries other than requests for information in the ordinary course of business consistent with past practice and unrelated to a Competing Proposal or (iii) any inquiry or request for discussions or negotiations regarding any Competing Proposal, notify the other party orally and in writing of any of the foregoing occurrences and provide a reasonably detailed description of such request, inquiry or Competing Proposal, including any modifications thereto. Each party shall keep the other party reasonably informed (orally and in writing) on a current basis (and in any event at the other party’s request and otherwise no later than 24 hours after the occurrence of any material changes, developments, discussions or negotiations) of the status of any request, inquiry or Competing Proposal (including the terms and conditions thereof and of any modification thereto), and any material developments, discussions and negotiations, including furnishing copies of any written inquiries, material correspondence and draft documentation, and written summaries of any material oral inquiries or discussions. Without limiting the foregoing, each party shall promptly (and in any event within 24 hours) notify the other party orally and in writing if it determines to begin providing information or to engage in discussions or negotiations concerning a Competing Proposal pursuant to Section 5.4. Each of Holdings and AmSurg agrees that, subject to applicable restrictions under applicable Law, it shall, prior to or concurrent with the time it is provided to any third parties, provide to the other party any non-public information concerning Holdings or AmSurg and their respective Subsidiaries that Holdings or AmSurg provided to any third party in connection with any Competing Proposal which was not previously provided to the other party.
(d) Notwithstanding anything in this Section 5.4 to the contrary, at any time prior to obtaining the Holdings Stockholder Approval or the AmSurg Shareholder Approval, the Holdings Board or the AmSurg Board may make a Holdings Adverse Recommendation Change or an AmSurg Adverse Recommendation Change, as applicable, if (i) such board determines that an Intervening Event has occurred and is continuing and (ii) such board determines in good faith (after consultation with its legal counsel and financial advisorsoutside counsel) that the failure to make a Holdings Adverse Recommendation Change or an AmSurg Adverse Recommendation Change, as applicable, in response to such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent Intervening Event would be inconsistent with its fiduciary duties to the applicable party’s stockholders or shareholders, as applicable, under applicable law, Law; provided that (Cx) the Holdings Board or the AmSurg Board has given the other party at least five (5) Business Days prior written notice of its intention to take such action and specifying in reasonable detail the circumstances related to such determination and (y) prior to providing any information effecting a Holdings Adverse Recommendation Change or data to any Person in connection with a Superior Proposal by any such Personan AmSurg Adverse Recommendation Change, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar applicable party has negotiated, and has caused its Representatives to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicatingnegotiate, in connection good faith with the other party during such noticenotice period to the extent such other party wishes to negotiate, the name of to enable such Person and party to revise the terms and conditions of any proposals this Agreement, such that the failure to make a Holdings Adverse Recommendation Change or offers. The Company agrees that it will immediately cease and cause an AmSurg Adverse Recommendation Change, as applicable, would not be inconsistent with its fiduciary duties to be terminated any existing activitiesstockholders or shareholders, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informedas applicable, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiationsunder applicable Law.
(be) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken Nothing contained in this Section 6.055.4 shall be deemed to prohibit AmSurg, Holdings, the AmSurg Board, the Holdings Board or any committee of the AmSurg Board or the Holdings Board from (i) complying with its disclosure obligations under U.S. federal or state Law with regard to a Competing Proposal, including taking and disclosing to its shareholders or stockholders, as applicable, a position contemplated by Rule 14d-9 or Rule 14e-2(a) under the Exchange Act (or any similar communication to shareholders) or (ii) making any “stop-look-and-listen” communication to the shareholders of AmSurg or the stockholders of Holdings, as applicable, pursuant to Rule 14d-9(f) under the Exchange Act (or any similar communications to the shareholders of AmSurg or the stockholders of Holdings, as applicable); provided that neither AmSurg nor the AmSurg Board may effect an AmSurg Adverse Recommendation Change and neither Holdings nor the Holdings Board may effect a Holdings Adverse Recommendation Change, in each case except in accordance with Section 5.4(d). Actions permitted under this Section 5.4(e) shall not be a basis for Holdings or AmSurg to terminate this Agreement pursuant to Section 7.1(c)(iii) or Section 7.1(d)(iii), as applicable.
(f) Any failure of Holdings’s or AmSurg’s respective Subsidiaries or its and their respective Representatives to fully comply with this Section 5.4 (as if such Subsidiaries or Representatives were directly subject to this Section 5.4) shall be deemed a breach of this Section 5.4 by Holdings or AmSurg, as applicable.
(g) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Envision Healthcare Holdings, Inc.), Merger Agreement (Amsurg Corp)
No Solicitation of Transactions. (a) The Neither the Company agrees that neither it nor any Subsidiary of the Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, through any of its officers, directors, agents, investment bankers or attorneys or otherwise, (i) solicit, initiate, solicitfacilitate, induce or encourage or otherwise facilitate (including by way of furnishing information) take any inquiries or the making of any proposal, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, action that could reasonably be expected to interfere with lead to the completion of the Merger making, submission or the other transactions contemplated by this Agreement (announcement of, any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition including a Superior Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging participate in any discussions or negotiations withregarding, or providing furnish to any person, any information with respect to, or otherwise cooperate in any Person way with respect to, or assist or participate in, facilitate, or induce any Acquisition Proposal, except that the Company may take any action referred to in this clause (ii) in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) if the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith within five (5) Business Days after consultation with independent legal counsel (who may be the Company's regularly engaged independent legal counsel), that the failure to take such action is necessary for it could reasonably be expected to act in constitute a manner consistent with breach of its fiduciary duties under applicable law, (B) if the Board determines in good faith that the Acquisition Proposal could reasonably be expected to result in a Superior Proposal, (C) if after giving prior written notice to providing any information or data to any Person in connection with Parent and Merger Sub and entering into a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed customary confidentiality agreement on terms substantially similar not materially less favorable to the Company than those contained in the Confidentiality Agreement and (D) prior if there has been no previous violation of this Section 6.05
(a) with respect to providing such Acquisition Proposal. For purposes of this Agreement, a "Superior Proposal" means any information bona fide written proposal, not solicited, initiated or data encouraged in violation of this Section 6.05, made by a third person to any Person acquire, directly or entering into discussions indirectly, for consideration consisting of cash and/or securities, all of the equity securities of the Company entitled to vote generally in the election of directors or negotiations all or substantially all of the consolidated assets of the Company and its Subsidiaries, that does not contain a financing condition, if and only if, the Board reasonably determines (after consulting with any Person, independent legal counsel (who may be the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person regularly engaged independent legal counsel) and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiations.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken in this Section 6.05.its financial advisor)
Appears in 2 contracts
Sources: Merger Agreement (Osi Pharmaceuticals Inc), Merger Agreement (Cell Pathways Inc /De)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary shall, and that nor shall it shall cause its and each authorize or permit the Representatives of the Company Subsidiary's Representatives not or the Subsidiaries to, directly or indirectly, initiate, solicit, (i) solicit or initiate or knowingly encourage or otherwise knowingly facilitate (including by way of furnishing information) any inquiries or the making implementation or submission of any proposal, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate (ii) participate in discussions or negotiations regarding, or furnish to any effort or attempt to make or implement an Acquisition Proposal or accept an person any non-public information in connection with, any Acquisition Proposal; providedPROVIDED, howeverHOWEVER, that that, prior to the adoption of this Agreement by the Company's stockholders at the Company Stockholders' Meeting, nothing contained in this Agreement shall prevent the Company or the Company's Company Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any furnishing information to, or engaging in negotiations or discussions with, any Person person in response to connection with an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock person, if and only to the extent that, in any that prior to taking such case as is referred to in clause (ii) or (iii), action (A) the Company's Company Board of Directors concludes believes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is is, or could reasonably capable of being completedbe expected to result in, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition a Superior Proposal, and wouldthe Company Board determines in good faith (after consultation with its outside legal counsel) that it is required to do so in order to comply with its fiduciary duties to the stockholders of the Company under applicable Law, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), and (B) the Company's Company Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person person an executed confidentiality agreement on agreement, the terms of which are substantially similar to and no less favorable to the Company than those contained in the Confidentiality Agreement Agreement. Neither the Company nor any Subsidiary shall enter into any letter of intent, acquisition agreement or similar agreement with respect to an Acquisition Proposal (other than a confidentiality agreement referred to in this Section 6.04(a)).
(b) The Company shall notify Parent as promptly as practicable (and (Din any event within 48 hours) prior to providing of the receipt by the Company or any of the Subsidiaries, or any of its or their respective Representatives, of any bona fide inquiries, proposals or offers, requests for information or data to any Person or entering into requests for discussions or negotiations with regarding any PersonAcquisition Proposal, specifying the Company's Board material terms and conditions thereof and the identity of Directors notifies IHK promptly the party making such proposal. The Company shall keep Parent reasonably informed of the status of any such discussions or negotiations and of any modifications to such inquiries, proposals or offers received by(the Company agreeing that it shall not, and shall cause the Subsidiaries not to, enter into any confidentiality agreement with any person subsequent to the date of this Agreement which prohibits the Company from providing such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offersParent). The Company agrees that neither it will nor any of the Subsidiaries shall terminate, waive, amend or modify any provision of any existing standstill or confidentiality agreement to which it or any of the Subsidiaries is a party and that it and the Subsidiaries shall enforce the provisions of any such agreement. The Company shall, and shall cause the Subsidiaries and its and their Representatives to, immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore that may be ongoing with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, Proposal as of the status and terms of any such proposals or offers date hereof, shall take reasonable steps to inform its and the status of any such discussions or negotiations.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary Subsidiaries' Representatives of the obligations undertaken in this Section 6.056.04 and shall request that all confidential information previously furnished to any such third parties be returned promptly.
(c) Except as set forth in this Section 6.04, the Company Board (or any committee thereof) shall not, and shall not publicly propose to, (i) withdraw or modify, in a manner adverse to Parent or Merger Sub, the approval or recommendation of this Agreement, the Merger or the other Transactions by the Company Board (or any committee thereof); (ii) approve or recommend any Acquisition Proposal; or (iii) approve any letter of intent, acquisition agreement or similar agreement with respect to any Acquisition Proposal (other than a confidentiality agreement referred to in this Section 6.04). Notwithstanding the foregoing, prior to the adoption of this Agreement by the Company's stockholders at the Company Stockholders Meeting, (x) in response to the receipt of an unsolicited bona fide written Acquisition Proposal, if the Company Board (A) determines in good faith (after consultation with its advisors) that such Acquisition Proposal is a Superior Proposal and (B) determines in good faith (after consultation with its outside legal counsel) that it is required to do so in order to comply with its fiduciary duties to the stockholders of the Company under applicable Law, then the Company Board may approve and recommend such Superior Proposal and, in connection with such Superior Proposal, withdraw or modify the Company Board Recommendation or (y) other than in connection with an Acquisition Proposal, if the Company Board determines in good faith (after consultation with its outside legal counsel) that it is required to do so in order to comply with its fiduciary duties to the stockholders of the Company under applicable Law, then the Company Board may withdraw or modify the Company Board Recommendation (either event described in the foregoing clauses (x) and (y), a "CHANGE IN BOARD RECOMMENDATION").
(d) Nothing contained in this Agreement shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any disclosure to the Company's stockholders if the Company Board (or any committee thereof) determines in good faith (after consultation with its outside legal counsel) that it is required to do so under applicable Law; PROVIDED, HOWEVER, that neither the Company nor the Company Board (nor any committee thereof) shall (i) recommend that the stockholders of the Company tender their Shares in connection with any such tender or exchange offer (or otherwise approve or recommend any Acquisition Proposal) or (ii) withdraw or modify the Company Board Recommendation, unless in each case the requirements of Section 6.04(c) shall have been satisfied.
(e) The Company shall not take any action to exempt any person from the restrictions on "business combinations" contained in Section 203 of the DGCL (or any similar provision) or in Article Tenth of the Certificate of Incorporation of the Company or otherwise cause such restrictions not to apply.
(f) Except as set forth in Section 8.03(d) with respect to an Acquisition Proposal, for purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Prime Hospitality Corp), Merger Agreement (Prime Hospitality Corp)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary shallshall not, directly or indirectly, and that it shall cause instruct its and each Company Subsidiary's Representatives officers, directors, employees, subsidiaries, agents or advisors or other representatives (including, without limitation, any investment banker, attorney or accountant retained by it), not to, directly or indirectly, initiate, solicit, initiate or knowingly encourage or otherwise facilitate (including by way of furnishing nonpublic information) ), or take any other action knowingly to facilitate, any inquiries or the making of any proposalproposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or offer with respect may reasonably be expected to a mergerlead to, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involvingany Competing Transaction, or enter into or maintain or continue discussions or negotiate with any purchase person in furtherance of such inquiries or sale of all to
obtain a Competing Transaction, or agree to or endorse any significant portion Competing Transaction, or authorize or permit any of the assets officers, directors or 20% or more employees of the equity securities of, the Company or any Company Subsidiary thatSubsidiary, in or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any Company Subsidiary, to take any such caseaction; PROVIDED, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, howeverHOWEVER, that nothing contained in this Agreement Section 6.06 shall prevent prohibit the board of directors of the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; a tender or exchange offer not made in violation of this Section 6.06 or (ii) engaging with regard to such an offer, after receiving the advice of outside counsel to the effect that the board of directors of the Company is required to do so in any discussions or negotiations withorder to discharge properly its fiduciary duties, or providing any information toconsidering, any Person in response negotiating and approving and recommending to the shareholders of the Company an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), acquisition proposal which (A) was not received in violation of this Section 6.06, (B) if executed or consummated would be a Competing Transaction, (C) is not subject to financing and (D) the Company's Board board of Directors concludes directors of the Company determines in good faith (faith, after consultation with receipt of an opinion of its legal counsel and financial advisors) that advisors to such Acquisition Proposal is reasonably capable of being completedeffect, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, would result in a transaction more favorable to holders of Company Common Stock the Company's stockholders, than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as acquisition proposal, a "Superior ProposalSUPERIOR PROPOSAL"). The Company shall notify Parent promptly, (B) the Company's Board of Directors determines and in good faith no event later than one day after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable lawreceipt, (C) prior to providing if any information proposal or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested fromoffer, or any such discussions inquiry or negotiations sought to be initiated or continued withcontact with any person with respect thereto, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offersregarding a Competing Transaction is made. The Company agrees that it will immediately shall cease and cause to be terminated any all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposala Competing Transaction. The Company agrees shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party. The Company shall use its best efforts to ensure that it shall keep IHK informedits officers, on a current basisdirectors, employees, subsidiaries, agents and advisors or other representatives (including, without limitation, any investment banker, attorney or accountant retained by it) are aware of the status and terms of any such proposals or offers and the status of any such discussions or negotiations.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken restrictions described in this Section 6.056.06.
Appears in 2 contracts
Sources: Agreement and Plan of Merger and Reorganization (Sun Healthcare Group Inc), Agreement and Plan of Merger and Reorganization (Sun Healthcare Group Inc)
No Solicitation of Transactions. (a) The Company Each Shareholder, severally and not jointly, agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, through any officer, director, representative, agent or otherwise, (a) initiate, solicit, facilitate or encourage or otherwise facilitate (including by way of furnishing non-public information) ), directly or indirectly, whether publicly or otherwise, any inquiries inquiries, offers or proposals with respect to, or the making of, any alternative corporate transaction in lieu of the Transactions (“Alternative Transaction”) (or that would reasonably be expected to encourage or lead to an Alternative Transaction), (b) engage in any proposalnegotiations or discussions concerning, or offer provide access to or furnish non-public information regarding, a Company’s or any Company Subsidiary’s properties, assets, personnel, books or records or any Confidential Information or data to, any person relating to an Alternative Transaction (or that would reasonably be expected encourage or lead to an Alternative Transaction), (c) enter into, engage in or maintain discussions or negotiations with respect to a mergerany Alternative Transaction (or inquiries, reorganizationproposals or offers or other communications that would reasonably be expected to encourage or lead to any Alternative Transaction) or otherwise cooperate with or assist or participate in, share exchangeor facilitate any such inquiries, consolidationproposals, offers, efforts, discussions or negotiations, (d) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any Alternative Transaction, (e) approve, endorse, recommend, execute or enter into any agreement, arrangement or understanding, letter of intent, memorandum of understanding, term sheet, acquisition agreement, merger agreement, business combinationcombination agreement, recapitalizationtransaction agreement, liquidationoption agreement, dissolution joint venture agreement, partnership agreement or similar transaction involving, other written arrangement relating to any Alternative Transaction or any purchase proposal or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, offer that could reasonably be expected to interfere with the completion lead to an Alternative Transaction, or (f) resolve or agree to do any of the Merger foregoing actions or the other transactions contemplated by this Agreement (otherwise authorize or permit any of its representatives to take any such proposal or offer being hereinafter referred to as an "Acquisition Proposal")action. The Company further agrees that neither it nor any Company Subsidiary Each Shareholder shall, and that it shall instruct and cause its representatives and each Company Subsidiary's Representatives not agents to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activitiessolicitations, discussions or negotiations with any parties conducted heretofore (other than the parties to the Merger Agreement and their respective representatives) in connection with respect to any a Company Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, of Proposal (other than the status and terms of any such proposals or offers and the status of any such discussions or negotiations.
(bTransactions) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company Shareholder acknowledges that any action taken by it or any Company Subsidiary representative of it inconsistent with the obligations undertaken restrictions set forth in this Section 6.053, whether or not such representative is purporting to act on the such Shareholder’s behalf, shall be deemed to constitute a breach of this Section 3 by such Shareholder. Notwithstanding the forgoing, the provisions of this Section 3 shall not limit the rights of the Pubco Board under Section 7.6(b) of the Merger Agreement.
Appears in 2 contracts
Sources: Voting and Support Agreement (Enterprise Diversified, Inc.), Voting and Support Agreement (Enterprise Diversified, Inc.)
No Solicitation of Transactions. (a) The Within one (1) Business Day of the date hereof the Company agrees will deliver a written notice to each Person with which ongoing discussions with respect to a Third Party Acquisition Proposal are then pending, to the effect that neither it nor the Company is ending all such discussions and negotiations with such Person with respect to any Acquisition Proposal and such notice shall also request such Person to promptly return or destroy all confidential information concerning the Company Subsidiary shalland its Subsidiaries (other than, for the avoidance of doubt, commercial contracts between the Company or any of its Subsidiaries and that it shall cause its such Person, or other confidential information provided in connection with such commercial contracts). From the date hereof and each during the Pre-Closing Period, the Company will not and will not authorize or permit any Subsidiary's Representatives not , or Representative to, directly or indirectly, :
(i) initiate, solicit, knowingly encourage or otherwise facilitate (including by way of furnishing informationproviding information in a manner designed to knowingly encourage) or take any action to knowingly facilitate any inquiries or the making making, submission or announcement of any proposalAcquisition Proposal or offer that constitutes, or offer with respect may reasonably be expected to a mergerlead to an Acquisition Proposal;
(ii) engage in, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution continue or similar transaction involvingotherwise participate in any discussions (other than to state that they are not permitted to have discussions) or negotiations regarding, or provide any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, information concerning the Company or any Company Subsidiary that, in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data Subsidiaries to any Person relating to, any Acquisition Proposal;
(iii) grant any waiver, amendment or release under any standstill or confidentiality agreement; or
(iv) approve, endorse, recommend or execute or enter into any letter of intent, agreement in principle, merger agreement, acquisition agreement or other similar agreement relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, proposal or otherwise facilitate any effort or attempt offer that is intended to make or implement lead to an Acquisition Proposal or accept requires the Company to abandon this Agreement (other than an Acquisition Proposal; provided, however, that nothing Acceptable Confidentiality Agreement).
(b) Notwithstanding anything to the contrary contained in this Agreement shall prevent Section 5.6(a) at any time prior to, but not after, the receipt of the Company or Required Vote, the Company's Board of Directors from Company may, subject to compliance with this Section 5.6:
(i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any provide information to, any Person in response to a request therefor to a Person who has made an unsolicited bona fide written Acquisition Proposal by after the date of this Agreement if and only if, prior to providing such information, the Company has received from the Person so requesting such information an executed Acceptable Confidentiality Agreement; provided that the Company shall promptly (and in any event within 24 hours) make available to Parent any material information concerning the Company and its Subsidiaries that is provided to any Person making such PersonAcquisition Proposal that is given such access and that was not previously made available to Parent or the Parent Representatives; or
(ii) engage or (iii) recommending participate in any discussions or negotiations with any Person who has made such an unsolicited bona fide written Acquisition Proposal Proposal; provided, that prior to the holders of Company Common Stock if and only to the extent that, taking any action described in any such case as is referred to in clause (iiSection 5.6(b)(i) or (iii)Section 5.6(b)(ii) above, (A) the Company's Company Board of Directors concludes shall have determined in good faith faith, after consultation with outside legal counsel, that the failure to take such action would be reasonably likely to violate its fiduciary duties to the Company Shareholders under applicable Laws and (B) the Company Board of Directors shall have determined in good faith, based on the information then available and after consultation with its independent financial advisor and outside legal counsel and financial advisors) counsel, that such Acquisition Proposal either constitutes a Superior Proposal or is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects likely to result in a Superior Proposal. Without modifying the generality of the foregoing, in making such determinations the Company Board of Directors shall take into consideration, among other factors: (x) whether such Third Party is reasonably likely to have adequate sources of financing or adequate funds to consummate such Acquisition Proposal and the Person making the (y) whether such Third Party has given reasonable assurances that it will not propose obtaining financing as a condition to its obligation to consummate such Acquisition Proposal, .
(c) From the date hereof and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than during the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such PersonPre-Closing Period, the Company's Board Company agrees that it will promptly (and, in any event, within 24 hours) notify Parent of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing if any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers with respect to an Acquisition Proposal are received by, any such non-public information is requested from, or any such discussions or negotiations are sought to be initiated or continued with, the Company, any Company Subsidiary or any of their its Representatives indicating, in connection with such notice, the name identity of the Person or group of Persons making such Person and offer or proposal, the material terms and conditions of any proposals or offers (including, if applicable, copies of any written requests, proposals or offers. The Company agrees that it will immediately cease , including proposed agreements) and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it thereafter shall keep IHK Parent reasonably informed, on a current prompt basis, of the status and terms of any such proposals or offers (including any amendments thereto) and the status of any such discussions or negotiations, including any change in the Company’s intentions as previously notified.
(bd) Except as expressly provided in Section 5.6(e), at any time after the date hereof, neither the Company Board of Directors nor any committee thereof nor any of the directors, whether acting in their individual capacity or as a director, shall:
(i) (A) withhold, withdraw (or not continue to make), qualify or modify (or publicly propose or resolve to withhold, withdraw (or not continue to make), qualify or modify), in a manner adverse to Parent or the Merger Sub, the Company Recommendation with respect to the Merger, (B) adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) an Acquisition Proposal, (C) (x) fail to publicly recommend against any Acquisition Proposal or (y) fail to publicly reaffirm the Company Recommendation, in each case of (x) and (y) within five (5) Business Days after Parent so requests in writing, (D) fail to recommend against any Acquisition Proposal subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten (10) Business Days after the commencement of such Acquisition Proposal, or (E) fail to include the Company Recommendation in the Proxy Statement (any action described in clauses (A) through (E), a “Company Adverse Recommendation Change”); or
(ii) cause or permit the Company or any of its Subsidiaries to enter into any Acquisition Agreement relating to any Acquisition Proposal.
(e) Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Company Required Vote, if the Company has received a bona fide written Acquisition Proposal from any Person that is not withdrawn and that the Company Board of Directors concludes in good faith constitutes a Superior Proposal, (i) the Company Board of Directors may effect a Company Adverse Recommendation Change with respect to such Superior Proposal, or (ii) the Company Board of Directors may authorize the Company to terminate this Agreement to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, if and only if:
(i) the Company Board of Directors determines in good faith, after consultation with independent financial advisor and outside legal counsel, that failure to do so would be reasonably likely to violate its fiduciary obligations under applicable Laws;
(ii) the Company shall have complied with its obligations under this Section 5.6 with respect to such Superior Proposal;
(iii) the Company shall have provided prior written notice to Parent at least four (4) Business Days in advance (the “Notice Period”), to the effect that the Company Board of Directors has received a bona fide written Acquisition Proposal that is not withdrawn and that the Company Board of Directors concludes in good faith constitutes a Superior Proposal and, absent any revision to the terms and conditions of this Agreement, the Company Board of Directors has resolved to effect a Company Adverse Recommendation Change and/or to terminate this Agreement pursuant to this Section 5.6(e), which notice shall include the identity of the party making the Superior Proposal and copies of the documentation setting forth the material terms and conditions of such Superior Proposal; and
(A) prior to effecting such Company Adverse Recommendation Change or termination, the Company shall, and shall use its reasonable best efforts to cause their financial and legal advisors to, during the Notice Period, negotiate with Parent and the Parent Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement, so that such Acquisition Proposal would cease to constitute a Superior Proposal; provided, that in the event of any material revisions to the Acquisition Proposal that the Company Board of Directors has determined to be a Superior Proposal, the Company shall be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.6 (including this Section 5.6(e)) with respect to such new written notice; and
(B) in the case of any action described in clause (y) of Section 5.6(e) above, the Company shall have validly terminated this Agreement in accordance with Section 7.1(d), including the payment of the Company Termination Fee in accordance with Section 7.2(b).
(f) Nothing contained in this Section 5.6 shall be deemed to prohibit the Company or the Company Board of Directors from (i) complying with its disclosure obligations under U.S. federal or state Law with regard to an Acquisition Proposal, including taking and disclosing to its shareholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) under the Exchange Act (or any similar communication to Shareholders) or (ii) making any “stop-look-and-listen” communication or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act; provided, however, the Company shall not effect, or disclose pursuant to such rules or otherwise a position which constitutes a Company Adverse Recommendation Change unless specifically permitted by this Section 5.6.
(g) In addition, at any time prior to the time the Required Company Shareholder Vote has been obtained, the Company Board of Directors may, in response to a material development or change in material circumstances occurring or arising after the date hereof, the existence and material consequences of which were not known by the Company Board of Directors at or prior to the date hereof (and not relating to any Acquisition Proposal) (such material development or change in circumstances, an “Intervening Event”), make a Company Adverse Recommendation Change if the Company Board of Directors determines in good faith, after consultation with its financial advisor and outside legal counsel, that, in light of such Intervening Event, the failure of the Company Board of Directors to effect such a Company Adverse Recommendation Change would be inconsistent with its fiduciary obligations to the Company Shareholders under applicable Laws; provided, that, the Company Board of Directors shall not be entitled to exercise its right to make a Company Adverse Recommendation Change pursuant to this sentence unless the Company has (i) provided to Parent at least three (3) Business Day prior written notice (unless the Intervening Event arises fewer than three (3) Business Days prior to the Company Shareholders Meeting in which case such notice shall be given as promptly as practicable) advising Parent that the Company Board of Directors intends to take such action and specifying the reasons therefor in reasonable detail and (ii) during such three (3) Business Day period, if requested by Parent, engaged in good faith negotiations with Parent to make such adjustments in the terms and conditions of this Agreement in such a manner that obviates the need for a Company Adverse Recommendation Change as a result of the Intervening Event.
(h) The Company agrees that it will take in the necessary steps to promptly inform each Company Subsidiary and each Representative event any of its Representatives takes any action which, if taken by the Company, would constitute a breach of this Section 5.6, then the Company or any Company Subsidiary shall be deemed to be in breach of the obligations undertaken in this Section 6.055.6.
Appears in 2 contracts
Sources: Merger Agreement (Sonicwall Inc), Merger Agreement (Sonicwall Inc)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary shallEach of SAM and STFC shall not, and that it shall cause its their respective Subsidiaries not to, and each Company Subsidiary's shall not authorize or permit their respective or their respective Subsidiaries’ directors, officers, employees or other Representatives not to, directly or indirectly, initiate, (i) solicit, initiate or knowingly encourage or otherwise knowingly facilitate (including by way of furnishing information) any inquiries or the making of any submission, announcement, proposal, offer or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution inquiry that constitutes or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could would reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred lead to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition a Takeover Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging enter into, continue or otherwise participate in any discussions or negotiations withregarding any submission, announcement, proposal, offer or inquiry that constitutes or would reasonably be expected to lead to a Takeover Proposal, or providing furnish any non-public information towith respect to SAM, STFC or any of their respective Subsidiaries to any Person in response (or their Representatives) who has made any submission, announcement, proposal, offer or inquiry that constitutes or would reasonably be expected to an unsolicited bona fide written Acquisition Proposal by any such Person; or lead to a Takeover Proposal, (iii) recommending such an unsolicited bona fide written Acquisition Proposal amend or grant any waiver or release under any standstill or similar agreement with respect to the holders any class of Company Common Stock if equity securities of STFC (unless, and only to the extent thatextent, in any such case as is referred to in clause (ii) the STFC Board or (iii), (A) the Company's Board of Directors concludes STFC Special Committee determines in good faith (faith, after consultation with its legal counsel financial advisor and financial advisors) outside counsel, that the failure to do so would reasonably be likely to constitute a breach of its fiduciary duties to its shareholders under Ohio Law, in which case it may enable such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory Persons to submit and other aspects of the Acquisition Proposal and the Person making the Acquisition pursue a Takeover Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (Biv) the Company's Board of Directors determines in good faith after consultation enter into any Takeover Proposal Documentation with legal counsel that such action is necessary for it respect to act in a manner consistent with its fiduciary duties under applicable law, Takeover Proposal or (Cv) prior publicly propose to providing any information or data agree to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or do any of the foregoing. Each of SAM and STFC shall, and shall cause their respective Subsidiaries and direct their respective Representatives indicatingto, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any all existing activities, discussions or and negotiations as of the date of this Agreement with any parties Person conducted heretofore theretofore with respect to any Acquisition submission, announcement, proposal, offer or inquiry that constitutes or would reasonably be expected to lead to a Takeover Proposal. The Company agrees Notwithstanding the foregoing or anything else to the contrary set forth in this Agreement, at any time prior to obtaining the STFC Shareholder Approval, in response to a bona fide written Takeover Proposal received after the date hereof and prior to obtaining the STFC Shareholder Approval that it shall keep IHK informeddid not result from a breach of this Section 7.08, on a current basis, (I) STFC may (and may authorize and permit its Subsidiaries and Representatives to) contact the Person or any of its Representatives who has made such Takeover Proposal solely to clarify the status and terms of such Takeover Proposal so that the STFC Board or STFC Special Committee, as applicable, may reasonably inform itself about such Takeover Proposal and (II) if the STFC Board or STFC Special Committee, as applicable, determines in good faith, after consultation with its financial advisor and outside counsel, that (A) such Takeover Proposal constitutes or would reasonably be expected to lead to a Superior Proposal and (B) that the failure to do so would reasonably be likely to constitute a breach of its fiduciary duties to its shareholders under Ohio Law, STFC may (and may authorize and permit its Subsidiaries and Representatives to), subject to compliance with Section 7.08(c), (x) furnish information with respect to SAM, STFC and their respective Subsidiaries to the Person making such Takeover Proposal (and its Representatives) pursuant to a confidentiality agreement containing provisions that are not more favorable to such Person than those contained in the Confidentiality Agreement are to LMHC (it being understood that such confidentiality agreement need not contain any standstill provisions); provided that all such proposals information has previously been provided to LMHC or offers is provided to LMHC prior to or substantially concurrently with the time it is provided to such Person or any of its Representatives, and (y) participate in discussions and negotiations with the status of any Person making such discussions or negotiationsTakeover Proposal (and its Representatives) regarding such Takeover Proposal.
(b) The Company agrees that it will take Neither the necessary steps SAM Board nor any committee thereof shall (i) withdraw or withhold (or modify in a manner adverse to promptly inform each Company Subsidiary and each Representative LMHC), or publicly propose to withdraw or withhold (or modify in a manner adverse to LMHC), the approval, declaration of advisability or recommendation by the Company SAM Board or any Company Subsidiary such committee of this Agreement, the obligations undertaken SAM Transaction, the Plan of Reorganization, the Amended Organizational Documents or the other transactions contemplated hereby, (ii) approve, declare advisable or recommend the adoption of, or publicly propose to approve, declare advisable or recommend the adoption of, any Takeover Proposal or (iii) fail to publicly reaffirm the SAM Recommendation within five (5) Business Days of a written request by LMHC to make such public reaffirmation following the receipt by SAM of a public Takeover Proposal that has not been withdrawn; provided that LMHC may make any such request only twice with respect to a particular Takeover Proposal (and, additionally, once per material modification to any such Takeover Proposal that is made public).
(c) Excepted to the extent permitted by and in compliance with Section 7.08(d), neither the STFC Board nor any committee thereof shall (i) withdraw or withhold (or modify in a manner adverse to LMHC), or publicly propose to withdraw or withhold (or modify in a manner adverse to LMHC), the approval, declaration of advisability or recommendation by the STFC Board or any such committee of this Section 6.05.Agreement, the STFC Merger or the other transactions contemplated hereby, (ii) approve, declare advisable or recommend the adoption of, or publicly propose to approve, declare advisable or recommend the adoption of, any Takeover Proposal or
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement
No Solicitation of Transactions. (a) The Company agrees that neither it nor Subject to Section 7.04(c), none of the Company, the Operating Partnership or any Company other Subsidiary shall, and that nor shall it shall cause its and each Company Subsidiary's Representatives not authorize, directly or indirectly, any Representative of the Company, the Operating Partnership or any other Subsidiary to, directly or indirectly, initiate, solicit, encourage (i) solicit or otherwise knowingly facilitate (including by way of furnishing informationnonpublic information or assistance) any inquiries with respect to, or the making of, any Acquisition Proposal, (ii) enter into discussions or negotiate with any Person in furtherance of such inquiries or to obtain an Acquisition Proposal or release any proposal, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution Person from any standstill agreement or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, obligation to the Company or any Subsidiary other than the automatic termination of standstill obligations pursuant to the terms of agreements as in effect as of the date hereof, by virtue of the execution and announcement of this Agreement or otherwise, (iii) withdraw, modify or amend the Company Subsidiary that, Recommendation in any such casemanner adverse to any Buyer Party, could reasonably be expected or fail to interfere with make the completion of the Merger or the other transactions contemplated by this Agreement Company Recommendation (any such proposal event described in this clause (iii), a “Change in Recommendation”), (iv) approve, endorse or offer being hereinafter referred to as an "recommend any Acquisition Proposal"). The Company further agrees that neither it nor , or (v) enter into any Company Subsidiary shallagreement in principle, and that it shall cause its and each Company Subsidiary's Representatives not toarrangement, directly understanding, contract or indirectly, have any discussion with or provide any confidential information or data to any Person agreement relating to an Acquisition Proposal Proposal. The Company shall, and shall direct its Representatives to, immediately cease any discussions, negotiations or engage in communications with any negotiations concerning an Acquisition Proposal, party or otherwise facilitate parties with respect to any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement Section 7.04 shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, preclude the Company, the Operating Partnership or their respective Representatives from contacting any Company Subsidiary such party or any parties solely for the purpose of their Representatives indicating, in connection complying with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, provisions of the status and terms last sentence of any such proposals or offers and the status of any such discussions or negotiationsthis Section 7.04(a).
(b) The Company agrees that it will take and the necessary steps Operating Partnership shall promptly, and in any event within forty-eight hours after receipt, notify Parent of the receipt of (i) an Acquisition Proposal, (ii) any request for information relating to promptly inform each the Company Subsidiary and each Representative or any Subsidiaries (other than requests for information unrelated to an Acquisition Proposal) or (iii) any inquiry or request for discussions or negotiations regarding any Acquisition Proposal, which any director, executive officer or trustee of the Company or any financial advisor, investment banker or attorney for the Company may receive after the date hereof. Such notification shall include, to the extent then known, the identity of the parties and a copy of such Acquisition Proposal, inquiry or request or, if not made in writing, a summary written description thereof. The Company and the Operating Partnership shall keep Parent reasonably informed on a prompt basis as to any material developments regarding any such proposal, indication, inquiry or request. None of the Company or any Subsidiary shall, after the date of this Agreement, enter into any confidentiality agreement that would prohibit them from providing such information to Parent. The Company shall not, and shall not permit any Subsidiary to, terminate, waive, amend or modify any provision of any existing standstill or confidentiality agreement to which the Company or any Subsidiary is a party, in each case relating to an Acquisition Proposal.
(c) Subject to the Company Parties’ compliance with the provisions of this Section 7.04, and only prior to the Company Shareholder Approval, following the receipt by the Company or any Subsidiary of a written Acquisition Proposal, the obligations undertaken Company Board may (directly or through Representatives) (I) contact such Person and its advisors solely for the purpose of clarifying the proposal and any material terms thereof and the conditions to consummation, so as to determine whether the proposal for an Acquisition Proposal is reasonably likely to result in this Section 6.05.a Superior Proposal and (II) if the Company Board determines in good faith following consultation with its legal and financial advisors that such Acquisition Proposal is reasonably likely to result in a Superior Proposal, the Company Board thereafter may (i) furnish non-public information with respect to the Company and the Subsidiaries to the Person who made such proposal (provided that the Company (A) has previously or concurrently furnished such information to Parent and (B) shall furnish such information pursuant to a confidentiality agreement which is at least as favorable to the Company as the Confidentiality Agreement), (ii) participate in negotiations regarding such proposal, (iii) following receipt of a written Acquisition Proposal that constitutes a Superior Proposal, (x) recommend that the Company’s shareholders approve such Superior Proposal and, in connection therewith, effect a Change in Recommendation and
Appears in 2 contracts
Sources: Merger Agreement (Eop Operating LTD Partnership), Merger Agreement (Eop Operating LTD Partnership)
No Solicitation of Transactions. (a) The Neither the Company agrees that neither it nor any Subsidiary of the Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, initiatethrough any officer, director, employee, representative, agent or otherwise (collectively, "REPRESENTATIVES"), (i) solicit, initiate or take any action intended to encourage the submission of any Acquisition Proposal, or (ii) participate in any discussions or negotiations regarding, or furnish to any person, any information with respect to, or otherwise facilitate (including by cooperate in any way of furnishing information) any inquiries or the making of any proposalwith respect to, or offer assist or participate in, or take any action intended to facilitate or encourage, any proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal. The Company shall, and shall direct or cause its Representatives to, immediately cease and cause to be terminated any discussions or negotiations with any parties that may be ongoing with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale Acquisition Proposal.
(b) Notwithstanding the first sentence of all or any significant portion of the assets or 20% or more of the equity securities ofSection 7.05(a), the Company may negotiate or otherwise engage in substantive discussions with, and furnish nonpublic information to, any person in response to an unsolicited Acquisition Proposal by such person if (i) the Company Subsidiary thathas complied with the terms of this Section 7.05, (ii) a majority of the Board determines in any good faith that such case, Acquisition Proposal could reasonably be expected to interfere result in a Superior Proposal and, after consultation with outside legal counsel, that the completion failure to take such action could reasonably be deemed to constitute a breach of its fiduciary duties under applicable law, (iii) such person executes, prior to receipt of any of such information, a confidentiality agreement on terms no less favorable to the Merger or Company than those contained in the other transactions contemplated by this Agreement Confidentiality Agreement, (any such proposal or offer being hereinafter referred iv) the Company provides reasonable notice to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and Parent that it shall cause its and each Company Subsidiary's Representatives not is furnishing information to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any entering into discussions or negotiations with, such person and provides in any such notice to Parent in reasonable detail the identity of the person making such Acquisition Proposal and the terms and conditions of such Acquisition Proposal, and (v) the Company promptly furnishes to Parent copies of any nonpublic information provided to such person that has not previously been furnished to Parent.
(c) Except as set forth in this Section 7.05, neither the Board nor any committee thereof shall (i) withhold, withdraw, amend, change or providing modify, or propose to withhold, withdraw, amend, change or modify, in a manner adverse to Parent or Purchaser, the approval or recommendation by the Board or any information tosuch committee of this Agreement, the Offer, the Merger or any other Transaction, (ii) approve or recommend, or propose to approve or recommend, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written enter into any agreement with respect to any Acquisition Proposal Proposal. Notwithstanding the foregoing, the Board shall be permitted (i) not to recommend to its shareholders acceptance of the holders Offer and/or approval and adoption of Company Common Stock if this Agreement and only the Merger, (ii) to the extent thatwithdraw, or modify in any such case as is a manner adverse to Parent, its recommendation to its shareholders referred to in clause Section 2.02 hereof, (iiiii) approve or recommend any Superior Proposal or (iii)iv) terminate this Agreement and in connection therewith enter into an agreement with respect to such Superior Proposal, but, in each case, only if (w) the Company has complied with the terms of this Section 7.05, (Ax) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Company has received an Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects which a majority of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith constitutes a Superior Proposal, (y) a majority of the Board determines in good faith, after consultation with outside legal counsel counsel, that the failure to take such action is necessary for it could reasonably be deemed to act in a manner consistent be inconsistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (Dz) prior no such action is taken earlier than the third (3rd) full business day following Parent's receipt of written notice of the intention of the Board to providing do so.
(d) The Company shall promptly advise Parent orally (within one (1) business day) and in writing (within two (2) business days) of (i) any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, Acquisition Proposal or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore request for information with respect to any Acquisition Proposal. , the material terms and conditions of -40- such Acquisition Proposal or request and the identity of the person making such Acquisition Proposal or request and (ii) any changes in any such Acquisition Proposal or request.
(e) Nothing contained in this Section 7.05 shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any disclosure to the Company's stockholders, if the Board determines in good faith that it is required to do so under applicable federal securities law or the Delaware Law after consultation with outside legal counsel.
(f) The Company agrees agrees, except as approved by a majority of the Board as being required by the Board's fiduciary duties under applicable law after consultation with outside legal counsel, and after giving Parent the notice required by paragraph (c)(z) above, not to release any third party from, or waive any provision of, any standstill agreement or any material provision of any confidentiality agreement to which the Company is a party relating to an Acquisition Proposal or other proposed transaction.
(g) Notwithstanding Section 7.05(a), but subject to the other terms and conditions of this Agreement, at any time on or after May 13, 2002, and prior to the Appointment Time, the Company may, upon delivery of written notice to Purchaser, solicit, initiate, or participate in discussions or negotiations regarding (or provide information in connection with) the acquisition by any person or persons that it shall keep IHK informed, is not a competitor of Parent or the Company (as determined by Parent in its reasonable judgment) of equity securities of the Company representing not more than 40% of the equity securities of the Company (calculated on a current basisfully diluted basis as though such proposed issuance had already occurred); PROVIDED, of HOWEVER, that (i) the status and terms Company shall not enter into any contract, agreement or arrangement in respect of any such proposals or offers and the status of proposed equity issuance, (ii) prior to engaging in any such discussions or negotiations.
, or providing any such information, the Company shall have entered into a confidentiality agreement with such person or persons on terms no less favorable to the Company than those contained in the Confidentiality Agreement, and (biii) The Company agrees that it will take no single person or group of persons would, if the necessary steps to promptly inform each Company Subsidiary and each Representative transactions contemplated by such discussions or negotiations were consummated, acquire more than 15% of the equity securities of the Company or any Company Subsidiary of the obligations undertaken in this Section 6.05(calculated on a fully diluted basis as though such proposed issuance had already occurred).
Appears in 2 contracts
Sources: Merger Agreement (Bei Medical Systems Co Inc /De/), Merger Agreement (Bei Medical Systems Co Inc /De/)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary shallNotwithstanding anything to the contrary contained in this Agreement but subject to Section 7.3(e) and Section 7.3(g), during the period beginning on the date of this Agreement and that it continuing until 11:59 p.m. (New York City time) on December 31, 2016 (the “Go Shop Period End Time”), REIT I, the REIT I Subsidiaries and their respective Representatives may and shall cause its and each Company Subsidiary's Representatives not have the right to, directly or indirectly, : (i) initiate, solicit, encourage or otherwise facilitate (including by way of furnishing information) any inquiries or the making of any proposal, offer or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involvingother action that constitutes, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could may reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not lead to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, including by way of (A) contacting third parties, (B) broadly disseminating public disclosure or otherwise facilitate any effort (C) providing access to the properties, offices, assets, books, records and personnel of REIT I and the REIT I Subsidiaries and furnishing non-public information pursuant to (but only pursuant to) one or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposalmore Acceptable Confidentiality Agreements; provided, however, that nothing contained REIT I has previously or contemporaneously furnished, made available or provided access to such non-public information to REIT II; (ii) enter into, continue or otherwise participate in this Agreement shall prevent the Company any discussions or the Company's Board negotiations with any Person relating to, or in furtherance of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard such inquiries, proposals, offers or other actions or to obtain, an Acquisition Proposal; (iii) release any Person from, or refrain from enforcing, any standstill agreement or similar obligation to REIT I or any of the REIT I Subsidiaries; and (iv) disclose to the stockholders of REIT I any information required to be disclosed under applicable Law; provided, however, that in the case of this clause (iv), to the extent any such disclosure addresses the approval, recommendation or declaration of advisability by the REIT I Board with respect to this Agreement or an Acquisition Proposal, such disclosure shall be deemed to be an Adverse Recommendation Change (as defined in Section 7.3(b) below) if not accompanied by an express public re-affirmation of the REIT I Board Recommendation. For purposes of this Agreement, the term “Go Shop Bidder” shall mean any Person (including its controlled Affiliates and Representatives) that submits a proposal or offer regarding an Acquisition Proposal not later than the Go Shop Period End Time that has not been withdrawn and that the REIT I Special Committee determines prior to the Go Shop Period End Time (or in the case of any Acquisition Proposal received less than five (5) Business Days before the date of the Go Shop Period End Time, not later than five (5) Business Days after the Go Shop Period End Time), has resulted in, or would be reasonably expected to result in, a Superior Proposal (as defined below) (such Person, a “Go Shop Bidder”); provided, that a Go Shop Bidder shall cease to be a Go Shop Bidder if the negotiations between REIT I and such Go Shop Bidder with respect to the Acquisition Proposal that resulted in such Go Shop Bidder becoming a Go Shop Bidder shall have been terminated. No later than two (2) Business Days after the Go Shop Period End Time, REIT I shall notify REIT II in writing of the identity of each Go Shop Bidder and provide to REIT II (x) a copy of any related Acquisition Proposal made in writing and any other written material terms or proposals provided (including, to the extent not included therein, a copy of the acquisition agreement and any related transaction documents and financing commitments, if any) to REIT I or any REIT I Subsidiary and (y) a written summary of the material terms of any related Acquisition Proposal not made in writing (including any material terms proposed orally or supplementally).
(b) Except as permitted by, and subject to, Section 7.3(c), Section 7.3(d) and Section 7.3(e), and except with respect to a Go Shop Bidder, from and after the Go Shop Period End Time, REIT I shall not, and shall cause each of the REIT I Subsidiaries not to, and shall not authorize or permit any of its or their Representatives to, (i) initiate, solicit, knowingly encourage or facilitate any inquiries or the making of any proposal, offer or other action that constitutes any Acquisition Proposal, (ii) engaging enter into, continue or otherwise participate in any discussions or negotiations withwith any Person, or providing furnish to any information toPerson other than a REIT II Party or their Representatives, any Person non-public information, in response furtherance of such inquiries or to obtain an unsolicited bona fide written Acquisition Proposal by any such Person; or Proposal, (iii) recommending such an unsolicited bona fide written release any Person from or fail to enforce any standstill agreement or similar obligation to REIT I or any REIT I Subsidiary, (iv) withdraw, modify or amend the REIT I Board Recommendation in any manner adverse to REIT II or fail to make the REIT I Board Recommendation or fail to include the REIT I Board Recommendation in the Proxy Statement, (v) approve, endorse or recommend any Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in (any such case as is referred to event described in clause (iiiv) or this clause (iiiv), whether taken by the REIT I Board or a committee thereof, an “Adverse Recommendation Change”), (Avi) the Company's Board of Directors concludes enter into any agreement in good faith principle, arrangement, understanding, contract or agreement (after consultation with its legal counsel and financial advisorswhether binding or not) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the contemplating or otherwise relating to an Acquisition Proposal, or (vii) take any action to exempt any Person from any Takeover Statute or similar restrictive provision of the REIT I Organizational Documents. In furtherance of the foregoing, REIT I shall, and wouldshall cause (i) each REIT I Subsidiary and (ii) each Representative of REIT I and the REIT I Subsidiaries to, immediately cease any discussions, negotiations or communications with any Person with respect to any Acquisition Proposal or potential Acquisition Proposal (other than as permitted by Section 7.3(a) or 7.3(c)) and shall immediately terminate all physical and electronic data room access previously granted to any such person. REIT I agrees that in the event any Representative of REIT I or any REIT I Subsidiary takes any action that, if consummatedtaken by REIT I or a REIT I Subsidiary, result in would constitute a transaction more favorable to holders material violation of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"Section 7.3(b), then REIT I shall be deemed to be in violation of this Section 7.3(b) for all purposes of this Agreement.
(Bc) At any time prior to the Company's date that is five (5) Business Days after the Go Shop Period End Time, the REIT I Board of Directors may, if the REIT I Board determines in good faith after consultation with its legal counsel advisor (and based on the recommendation of the REIT I Special Committee) that such action is necessary for it failing to act in a manner consistent do so would be inconsistent with its fiduciary the directors’ duties under applicable lawLaw, (C) prior to providing any information or data to any Person in connection with upon receipt by REIT I of an Acquisition Proposal from a Go Shop Bidder that constitutes a Superior Proposal by any Proposal, give notice of its intention to terminate this Agreement pursuant to Section 9.1(c)(ii) and enter into an agreement related to such PersonSuperior Proposal, provided, that:
(i) REIT I has notified REIT II in writing that the Company's REIT I Board of Directors receives from intends to enter into an agreement relating to such Person an executed confidentiality agreement on terms substantially similar to those contained in Superior Proposal, attaching the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly most current version of such inquiriesagreement (including any amendments, proposals supplements or offers received bymodifications) to such notice (a “REIT I Notice of Intention”); and
(ii) during the five (5) Business Day period following REIT II’s receipt of a REIT I Notice of Intention, any such information requested fromREIT I shall have offered to negotiate with (and, or any such discussions or negotiations sought if accepted, negotiated in good faith with), and shall have caused its respective financial and legal advisors to be initiated or continued offer to negotiate with (and, if accepted, negotiate in good faith with), the Company, any Company Subsidiary or any of their Representatives indicating, REIT II in connection with such notice, the name of such Person and making adjustments to the terms and conditions of any proposals or offers. The Company agrees this Agreement such that it will immediately cease and cause the Superior Proposal ceases to be terminated a Superior Proposal; provided, that any existing activitiesamendment, discussions supplement or negotiations modification to any Acquisition Proposal shall be deemed a new Acquisition Proposal and REIT I may not enter into any such Superior Proposal pursuant this Section 7.3(c) unless REIT I has complied with any parties conducted heretofore the requirements of this Section 7.3(c) with respect to any such Acquisition Proposal. The Company agrees Proposal including sending a REIT I Notice of Intention (except that it the new negotiation period under this Section 7.3(c) shall keep IHK informed, on a current basis, be three (3) Business Days instead of the status and terms of any such proposals or offers and the status of any such discussions or negotiationsfive (5) Business Days).
(bd) The Company agrees that it will take At any time beginning on the necessary steps sixth (6th) Business Day after the Go Shop Period End Time and prior to promptly inform each Company Subsidiary and each Representative receipt of the Company Stockholder Approvals, the REIT I Board may, if the REIT I Board determines in good faith after consultation with its legal advisor (and based on the recommendation of the REIT I Special Committee) that the failure to do so would be inconsistent with the directors’ duties under applicable Law, upon receipt by the REIT I of an Acquisition Proposal that constitutes a Superior Proposal (whether or not from a Go Shop Bidder), make an Adverse Recommendation Change; provided, that:
(i) Such Acquisition Proposal (1) did not result from REIT I’s material breach of its obligations under this Section 7.3, and (2) the REIT I Board has determined in good faith, after consultation with its legal and financial advisors (and based on the recommendation of the REIT I Special Committee), that such Acquisition Proposal constitutes a Superior Proposal and, after consultation with its legal advisor, that the failure of REIT I to make an Adverse Recommendation Change would be inconsistent with the directors’ duties under applicable Law, taking into account all adjustments to the terms of this Agreement that may be offered by REIT II pursuant to Section 7.3(d)(iii);
(ii) REIT I has notified REIT II in writing that the REIT I Board intends to make an Adverse Recommendation Change (a “Adverse Recommendation Change Notice”); and
(iii) during the five (5) Business Day period following REIT II’s receipt of an Adverse Recommendation Change Notice REIT I shall have offered to negotiate with (and, if accepted, negotiated in good faith with), and shall have caused its respective financial and legal advisors to offer to negotiate with (and, if accepted, negotiate in good faith with), REIT II in making adjustments to the terms and conditions of this Agreement such that in circumstances involving or relating to an Acquisition Proposal, the Superior Proposal ceases to be a Superior Proposal; provided that any change in the consideration offered or any Company Subsidiary other material amendment, supplement or modification to any Acquisition Proposal shall be deemed a new Acquisition Proposal and REIT I may not make an Adverse Recommendation Change unless REIT I has complied with the requirements of this Section 7.3(d) with respect to each such new Acquisition Proposal including sending an Adverse Recommendation Change Notice with respect to each such new Acquisition Proposal (except that the obligations undertaken new negotiation period under this Section 7.3(d)(iii) shall be three (3) Business Days instead of five (5) Business Days). Notwithstanding anything in this Section 6.057.3(d)(iii), REIT II’s rejection of REIT I’s offer to negotiate pursuant to this Section 7.3(d)(iii) shall not have any bearing on REIT II’s right to terminate this Agreement pursuant to Section 9.1(d)(ii) herein.
(e) Nothing in this Section 7.3 or elsewhere in this Agreement shall prevent the REIT I Board or REIT I, directly or indirectly, from (i) taking and disclosing to the stockholders of REIT I a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act with respect to an Acquisition Proposal, making any required disclosure to the stockholders of REIT I under applicable Law, including Rule 14d-9 promulgated under the Exchange Act or Item 1012(a) of Regulation M-A or (ii) making any disclosure to the stockholders of REIT I if the REIT I Board determines in good faith after consultation with its legal advisors (and based on the recommendation of the REIT I Special Committee) that the failure to do so would be inconsistent with the directors’ duties under applicable Law; provided, however, that to the extent any such disclosure addresses the approval, recommendation or declaration of advisability by the REIT I Board with respect to this Agreement or an Acquisition Proposal, such disclosure shall be deemed to be an Adverse Recommendation Change if not accompanied by an express public re-affirmation of the REIT I Board Recommendation.
(f) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Moody National REIT I, Inc.), Agreement and Plan of Merger (Moody National REIT II, Inc.)
No Solicitation of Transactions. (a) The Neither the Company agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, initiatethrough any officer, director, employee, representative, agent or otherwise, (i) solicit, initiate or take any action intended to encourage or otherwise facilitate (including by way of furnishing information) any inquiries or the making submission of any proposal, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging except as required by the fiduciary duties of the Board under applicable Law (as determined in good faith) after having received advice from outside legal counsel in response to unsolicited proposals, participate in any discussions or negotiations withregarding, or providing furnish to any person, any information (provided that prior to furnishing such information, the Company enters into a customary, confidentiality agreement on terms no less favorable to the Company than those contained in the Confidentiality Agreement) with respect to, or otherwise cooperate in any Person way with respect to, or assist or participate in, or take any action intended to facilitate or encourage, any proposal that constitutes, or may reasonably be expected to lead to, an Acquisition Proposal.
(b) Except as set forth in response this Section 7.05(b), neither the Board nor any committee thereof shall (i) withhold, withdraw, amend, change or modify, or propose to an unsolicited bona fide written withhold, withdraw, amend, change or modify, in a manner adverse to Parent or Purchaser, the approval or recommendation by the Board or any such committee of this Agreement, the Offer, the Merger or any other Transaction, (ii) approve or recommend, or propose to approve or recommend, any Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written enter into any agreement with respect to any Acquisition Proposal Proposal. Notwithstanding the foregoing, in the event that, prior to the holders time of Company Common Stock if and only acceptance for payment of Shares pursuant to the extent thatOffer, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action it is necessary for it required to act in a manner consistent with do so by its fiduciary duties under applicable lawlaw after having received advice from outside legal counsel and that the Acquisition Proposal constitutes, (C) prior or may reasonably be expected to providing any information or data to any Person in connection with lead to, a Superior Proposal by any such PersonProposal, after giving prior written notice to Parent and Purchaser, the Company's Board may withhold, withdraw, amend, change or modify its approval or recommendation of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person Offer and the terms and conditions of any proposals or offers. Merger, but only to terminate this Agreement in accordance with Section 9.01(d)(ii).
(c) The Company agrees that it will shall, and shall direct or cause its directors, officers, employees, representatives, agents or other representatives to, immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore that may be ongoing with respect to any Acquisition Proposal as of the date hereof.
(d) The Company shall promptly advise Parent orally (within one (1) Business Day) and in writing (within two (2) Business Days) of (i) any Acquisition Proposal or any request for information with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, the material terms and conditions of such Acquisition Proposal or request and the identity of the status person making such Acquisition Proposal or request and terms of (ii) any changes in any such proposals Acquisition Proposal or offers and the status of any such discussions or negotiationsrequest.
(be) Nothing contained in this Section 7.05 shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any disclosure to the Company's stockholders, if the Board determines in good faith that it is required to do so by its fiduciary duties under applicable law after having received advice from outside legal counsel; provided, however, that neither the Company nor the Board nor any committee thereof shall, except as permitted by Section 7.05(b), withhold, withdraw, amend, change or modify, or propose publicly to withhold, withdraw, amend, change or modify, its position with respect to this Agreement, the Offer, the Merger or any other Transaction or to approve or recommend, or propose publicly to approve or recommend, an Acquisition Proposal, including a Superior Proposal.
(f) The Company agrees that it will take agrees, except as required by the necessary steps Board's fiduciary duties under applicable law after having received advice from outside legal counsel, not to promptly inform each Company Subsidiary and each Representative of release any third party from, or waive any provision of, any confidentiality or standstill agreement to which the Company or any Company Subsidiary of the obligations undertaken in this Section 6.05is a party.
Appears in 2 contracts
Sources: Merger Agreement (Thomson Corp), Merger Agreement (Thomson Corp)
No Solicitation of Transactions. (a) The Company agrees that neither will not, nor will it permit any of its Subsidiaries to, nor will it authorize or permit any Representative of the Company Subsidiary shall, and that it shall cause or any of its and each Company Subsidiary's Representatives not Subsidiaries to, directly or indirectly, initiate, (i) solicit, initiate or encourage or otherwise facilitate (including by way of furnishing information) any inquiries or the making submission of any proposalproposal or offer that constitutes, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could may reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not lead to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging engage in, continue or otherwise participate in any discussions or negotiations withregarding, or providing furnish to any Person any non-public information towith respect to the Company or any of its Subsidiaries, or take any other action to facilitate, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or Proposal, (iii) recommending such an unsolicited bona fide written agree to, approve, endorse or recommend any Acquisition Proposal or enter into any letter of intent, agreement or agreement in principle with respect to an Acquisition Proposal, (iv) authorize or permit any Representatives of the holders Company or any of its Subsidiaries retained by or acting directly or indirectly under the direction of the Company Common Stock if and only or any of its Subsidiaries, to take any action set forth in the extent that, in any such case as is referred to in clause preceding clauses (iii) through (iii) of this Section 6.4(a) or (iii), (Av) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (release any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested third party from, or waive any such discussions provision of, any confidentiality or negotiations sought standstill agreement to be initiated or continued withwhich it is a party. Immediately after the execution and delivery of this Agreement, the CompanyCompany will, any Company Subsidiary or any of and will cause its Subsidiaries and Affiliates and their respective Representatives indicatingto, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated terminate any existing activities, discussions or negotiations with any parties Person conducted heretofore with respect to any possible Acquisition Proposal. The Company agrees that it , shall keep IHK informed, promptly cause to be returned or destroyed all confidential information provided by or on a current basis, behalf of the status Company or any of its Subsidiaries to such Person, and terms shall notify each such Person and its Representatives that the Company Board no longer seeks or requests the making of any such proposals or offers Acquisition Proposal, and withdraws any consent theretofore given to the status making of any such discussions or negotiationsan Acquisition Proposal.
(b) Notwithstanding anything in Section 6.4(a) to the contrary, prior to the time the Shareholder Approval is obtained, but not after, if the Company receives an unsolicited bona fide written Acquisition Proposal from any Person that did not result from a breach by the Company of this Section 6.4 and that has not been withdrawn, (i) the Company and its Representatives may contact such Person to clarify the terms and conditions thereof so as to determine whether such Acquisition Proposal constitutes or would reasonably be expected to result in a Superior Proposal, and (ii) if the Company Board has determined, in its good faith judgment, upon the recommendation of the Special Committee (after consultation with an independent financial advisor of internationally recognized reputation and independent legal counsel), that such Acquisition Proposal would reasonably be expected to result in a Superior Proposal, then the Company and its Representatives may (x) furnish information (including non-public information) with respect to the Company to the Person who has made such Acquisition Proposal and (y) engage in or otherwise participate in discussions or negotiations with the Person making such Acquisition Proposal; provided, that the Company shall (1) notify Parent of any Acquisition Proposal (including, without limitation, all material terms and conditions thereof and the identity of the Person making it) as promptly as practicable (but in no case later than 48 hours) after its receipt thereof, and shall provide Parent with a copy of any written Acquisition Proposal or amendments or supplements thereto, and shall thereafter inform Parent on a reasonably current basis of the status of any inquiries, discussions or negotiations with such third party, and any material changes to the terms and conditions of such Acquisition Proposal, (2) obtain from such Person an Acceptable Confidentiality Agreement (it being understood that an Acceptable Confidentiality Agreement and any related agreements shall not include any provision granting such Person exclusive rights to negotiate with the Company or having the effect of prohibiting the Company from satisfying its obligations under this Agreement) and (3) concurrently give Parent a copy of any information delivered to such Person that was not previously provided to Parent. The Company agrees shall not, and shall cause its Subsidiaries not to, enter into any Contract with any Person subsequent to the date hereof that it will would restrict the Company’s ability to provide such information to Parent, and neither the Company nor any of its Subsidiaries is currently party to any agreement that prohibits the Company from providing the information described in this Section 6.4(b) to Parent.
(c) Except as expressly permitted by this Section 6.4, neither the Company Board nor any committee thereof shall (i) (A) fail to make a Company Board Recommendation or fail to include the Company Recommendation in the Proxy Statement, (B) withhold, withdraw (or not continue to make), qualify or modify, or propose to withhold, withdraw (or not continue to make), qualify or modify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (C) adopt, approve or recommend or propose to adopt, approve or recommend (publicly or otherwise) any Acquisition Proposal, (D) fail to recommend against any Acquisition Proposal subject to Regulation 14D under the Exchange Act in a Solicitation/Recommendation Statement on Schedule 14D-9 within ten (10) Business Days after the commencement of such Acquisition Proposal, (E) publicly announce is intention to take any of the necessary steps actions described in foregoing clauses (A) through (D) (any of such actions described in clauses (A) through (E) being referred to promptly inform each Company Subsidiary and each Representative as a “Change of Recommendation”), or (ii) authorize, cause or permit the Company or any of its Subsidiaries to enter into any letter of intent, memorandum of understanding, agreement in principle, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement, merger agreement or other similar agreement relating to any Acquisition Proposal (other than any Acceptable Confidentiality Agreement entered into in accordance with Section 6.4(b)) (each, an “Alternative Acquisition Agreement”). The Company Subsidiary acknowledges and agrees that the doing of any of the obligations undertaken foregoing by any of its Subsidiaries or Representatives shall be deemed to be a breach by the Company of this Section 6.4(c).
(d) Notwithstanding anything in this Section 6.056.4 to the contrary, prior to the time the Shareholder Approval is obtained, but not after, if the Company has received a written, bona fide proposal or offer with respect to an Acquisition Proposal that did not arise or result from a breach of Section 6.4(a), that is not withdrawn and that the Company Board determines, upon the recommendation of the Special Committee (after having received the advice of an independent financial advisor of internationally recognized reputation and independent legal counsel), in its good faith judgment constitutes a Superior Proposal, the Company Board may, upon the recommendation of the Special Committee (after having received the advice of an independent financial advisor of internationally recognized reputation and independent legal counsel), (x) make a Change of Recommendation, and/or (y) authorize the Company to terminate this Agreement pursuant to Section 8.3(b) to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, if the Company Board determines, upon the recommendation of the Special Committee (after having received the advice of an independent financial advisor of internationally recognized reputation and independent legal counsel), in its good faith judgment, that failure to take any such action would reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable Law; provided, that the Company has (A) provided at least five (5) Business Days’ (the “Negotiation Period”) prior written notice to Parent (a “Notice of Superior Proposal”) advising Parent that the Company Board has received a Superior Proposal (which notice shall include an unredacted copy of the Superior Proposal, an unredacted copy of the relevant proposed transaction agreements and a copy of any financing commitments relating thereto, if applicable) and indicating that the Company Board intends to take any such action, (B) during the Negotiation Period, the Company shall have negotiated with, and caused its Representatives to negotiate with, Parent and its Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement and/or the terms of the Financing Documents, so that such Acquisition Proposal would cease to constitute a Superior Proposal (any amendment to the terms of such Superior Proposal during the Negotiation Period shall require a new Notice of Superior Proposal of the terms of such amended Superior Proposal from the Company and an additional Negotiation Period that satisfies this Section 6.4(d), and (C) following the end of the Negotiation Period (or any additional Negotiation Period, if applicable), the Company Board determines, in its good faith judgment upon the recommendation of the Special Committee (after consultation with an independent financial advisor of internationally recognized reputation and independent legal counsel), that the Acquisition Proposal giving rise to the Notice of Superior Proposal continues to constitute a Superior Proposal and that failure to take any of the actions referenced in subsection (x) or (y) herein would reasonably be expected to be inconsistent with the Company Board’s fiduciary duties under applicable Law.
(e) Notwithstanding anything in this Section 6.4 to the contrary, prior to the time the Shareholder Approval is obtained, but not after, if the Company Board determines, in its good faith judgment upon the recommendation of the Special Committee (after consultation with an independent financial advisor of internationally recognized reputation and independent legal counsel), other than in response to or in connection with an Acquisition Proposal, that failure to make a Change of Recommendation and/or terminate this Agreement pursuant to Section 8.3(c) would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law, the Company Board may, upon the recommendation of the Special Committee (after consultation with an independent financial advisor of internationally recognized reputation and independent legal counsel), effect a Change of Recommendation and/or terminate this Agreement pursuant to Section 8.3(c); provided, that (i) any such action is in response to an Intervening Event; (ii) the Company has (A) provided Parent at least five (5) Business Days’ prior written notice indicating that the Company Board intends to effect a Change of Recommendation and/or terminate this Agreement pursuant to Section 8.3(c), which notice shall specify in detail the basis for such Change of Recommendation and/or termination and the manner in which it intends (or may intend) to do so, and (B) negotiated with, and caused its Representatives to negotiate with, Parent and its Representatives in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement and/or the terms of the Financing Documents in such a manner that would obviate the need for taking such action; and (iii) following the end of such five (5)-Business Day period, the Company Board determines, in its good faith judgment upon the recommendation of the Special Committee (after consultation with an independent financial advisor of internationally recognized reputation and independent legal counsel), that such adjustments proposed by Parent pursuant the foregoing clause (B) would not obviate the need for a Change of Recommendation and/or terminate this Agreement pursuant to Section 8.3(c) in response to such Intervening Event.
(f) Nothing contained in this Section 6.4 shall be deemed to prohibit the Company from complying with its disclosure obligations under federal or state Laws of the United States of America, or other applicable Laws, with regard to an Acquisition Proposal; provided, that making such disclosure shall not in any way limit or modify the effect, if any, that any such action has under this Section 6.4; provided, further, that if such disclosure includes a Change of Recommendation or has the substantive effect of a Change of Recommendation, Parent shall have the right to terminate this Agreement as set forth in Section 8.4(b) (it being understood that a statement by the Company that factually describes the Company’s receipt of an Acquisition Proposal and the operation of this Agreement with respect thereto, or any “stop, look or listen” communication that contains only the information set forth in Rule 14d-9(f) under the Exchange Act, shall not be deemed a Change of Recommendation).
Appears in 2 contracts
Sources: Merger Agreement (Ren Jinsheng), Merger Agreement (Simcere Pharmaceutical Group)
No Solicitation of Transactions. (a) Section 6.4.1 The Company agrees that neither it nor any Company Subsidiary shallshall not, and that it shall cause its Subsidiaries not to, and each shall not authorize or permit any Company Subsidiary's Representatives not Representative to, directly or indirectly, initiate, solicit, initiate or knowingly take any action to facilitate or encourage or otherwise facilitate (including by way the submission of furnishing information) any inquiries Takeover Proposal or the making of any proposal, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, proposal that could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data lead to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Takeover Proposal, or otherwise facilitate any effort or attempt or, subject to make or implement an Acquisition Proposal or accept an Acquisition Proposal; providedSection 6.4.2, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging conduct or engage in any discussions or negotiations with, disclose any non-public information relating to the Company or providing any information of its Subsidiaries to, afford access to the business, properties, assets, books or records of the Company or any Person in response of its Subsidiaries to, or knowingly assist, participate in, facilitate or encourage any effort by, any third party that is seeking to make, or has made, any Takeover Proposal, (ii) (a) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company or any of its Subsidiaries or (b) approve any transaction under, or any third party becoming an unsolicited bona fide written Acquisition Proposal by any such Person; “interested stockholder” under, Section 203 of the DGCL, or (iii) recommending such an unsolicited bona fide written enter into any agreement in principle, letter of intent, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other Contract relating to any Takeover Proposal (each, a “Company Acquisition Proposal Agreement”). Subject to Section 6.4.2, neither the holders of Company Common Stock if and only Board nor any committee thereof shall fail to the extent thatmake, in any such case as is referred to in clause (ii) withdraw, amend, modify or (iii)materially qualify, (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior adverse to providing any information Parent or data to any Person in connection with a Superior Proposal by any such PersonMerger Sub, the Company's Board Company Recommendation, or recommend a Takeover Proposal, fail to recommend against acceptance of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in any tender offer or exchange offer for the Confidentiality Agreement and shares of Company Stock within ten (D10) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, Business Days after the Company's Board of Directors notifies IHK promptly commencement of such inquiries, proposals or offers received by, any such information requested fromoffer, or make any such discussions public statement inconsistent with the Company Board Recommendation, or negotiations sought resolve or agree to be initiated or continued with, the Company, any Company Subsidiary or take any of their Representatives indicatingthe foregoing actions (any of the foregoing, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offersa “Company Adverse Recommendation Change”). The Company agrees that it will shall, and shall cause its Subsidiaries to, cease immediately cease and cause to be terminated terminated, and shall not authorize or knowingly permit any Company Representatives to continue, any and all existing activities, discussions or negotiations negotiations, if any, with any parties third party conducted heretofore prior to the date hereof with respect to any Acquisition Proposal. The Company agrees that it Takeover Proposal and shall keep IHK informed, on a current basis, of the status and terms of cause any such proposals third party (or offers and the status its agents or advisors) in possession of any such discussions or negotiations.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative non-public information in respect of the Company or any Company Subsidiary of its Subsidiaries that was furnished by or on behalf of the obligations undertaken in this Section 6.05Company and its Subsidiaries to return or destroy (and confirm destruction of) all such information.
Appears in 2 contracts
Sources: Merger Agreement (Hecla Mining Co/De/), Merger Agreement (Hecla Mining Co/De/)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary shallExcept as expressly permitted by this Section 7.3, Terra BDC and the Terra BDC Advisor shall not, and that it Terra BDC shall cause its each of the Terra BDC Subsidiaries not to, and each Company Subsidiary's shall instruct and use their commercially reasonable efforts to cause their respective Representatives not to, directly or indirectly, initiate, (i) solicit, initiate or knowingly encourage or otherwise facilitate (including by way of furnishing information) any inquiries or the making of any proposalinquiry, proposal or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involvingto, or any purchase the announcement, making or sale of all or any significant portion of the assets or 20% or more of the equity securities completion of, the Company or any Company Subsidiary that, in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort inquiry, proposal or attempt offer that is reasonably likely to make or implement an Acquisition Proposal or accept an lead to any Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging enter into, continue or otherwise participate in any discussions or negotiations withregarding, or providing furnish to any Person (other than Terra REIT or its Representatives) any non-public information toor data in furtherance of, any Person Acquisition Proposal or any inquiry, proposal or offer that is reasonably likely to lead to any Acquisition Proposal (other than, in response to an unsolicited bona fide written Acquisition Proposal by or any such Person; unsolicited inquiry, proposal or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) offer that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the likely to lead to any Acquisition Proposal, to refer the inquiring Person to this Section 7.3 and would, if consummated, result in a transaction more favorable to holders request clarification of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals Acquisition Proposal so as to determine whether the terms and conditions of such Acquisition Proposal constitutes, or offerscould reasonably be expected to lead to, a Superior Proposal), (iii) enter into any definitive acquisition agreement, merger agreement, share exchange agreement, consolidation agreement, option agreement, joint venture agreement or partnership agreement (including any letter of intent or agreement in principle) (each, an “Alternative Acquisition Agreement”) relating to any Acquisition Proposal (other than an Acceptable Confidentiality Agreement pursuant to this Section 7.3(a)), (iv) grant any waiver, amendment or release under any standstill or confidentiality agreement or any Takeover Statute or (v) agree, approve, recommend or propose to do any of the foregoing. The Company agrees that it will Terra BDC and the Terra BDC Advisor shall, and shall cause each of the Terra BDC Subsidiaries, and shall use their commercially reasonable efforts to cause their Representatives to, (A) immediately cease and cause to be terminated any all existing activities, discussions or negotiations with any parties Person and its Representatives (other than the Terra REIT or its Representatives) conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on (B) enforce any confidentiality or standstill agreement or provisions of similar effect to which Terra BDC or any Terra BDC Subsidiary is a current basisparty or of which Terra BDC or any Terra BDC Subsidiary is a beneficiary with regards to any Acquisition Proposal, and (C) request the prompt return or destruction, to the extent permitted by any confidentiality agreement, of the status and terms of all non-public information or data previously furnished to any such proposals or offers Person and the status of its Representatives with respect to any Acquisition Proposal and immediately terminate all physical and electronic data room access previously granted to any such Person, its subsidiaries or any of their respective Representatives with respect to any Acquisition Proposal. Notwithstanding the foregoing, if, at any time following the date of this Agreement and prior to obtaining the Stockholder Approvals, (1) Terra BDC receives a written Acquisition Proposal that was not the result of a violation of this Section 7.3(a) and (2) the Terra BDC Board (based on the recommendation of the Terra BDC Special Committee) determines in good faith (after consultation with outside counsel and a financial advisor) that such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal and determines in good faith (after consultation with outside counsel) that its failure to take such action would be inconsistent with the duties of the Terra BDC directors under applicable Law, then Terra BDC may (and may authorize any Terra BDC Subsidiary and its Representatives to), after notifying Terra REIT of such determination, (x) furnish non-public information or data with respect to itself and its subsidiaries to the Person making such Acquisition Proposal (and its Representatives) pursuant to an Acceptable Confidentiality Agreement; provided, that (i) any non-public information or data provided to any such Person given such access shall have previously been provided to Terra REIT or shall be provided (to the extent permitted by applicable Law) to Terra REIT prior to or substantially concurrently with the time it is provided to such Person and (ii) no non-public information or data with respect to Terra REIT shall be provided to any such Person, and (y) participate in discussions or negotiationsand negotiations with the Person making such Acquisition Proposal (and such Person’s Representatives) regarding such Acquisition Proposal.
(b) The Company agrees that it will take Except as provided in Section 7.3(c), the necessary steps Terra BDC Board (i) shall not fail to promptly inform each Company Subsidiary and each Representative make or withdraw (or modify or qualify in any manner adverse to Terra REIT or publicly propose to withdraw, modify or qualify in any manner adverse to Terra REIT) the Terra BDC Board Recommendation or the determination of the Company advisability to its stockholders of the Merger and other transactions contemplated hereby, (ii) adopt, approve or publicly recommend, endorse or otherwise declare advisable any Acquisition Proposal, (iii) fail to include the Terra BDC Board Recommendation, in whole or in part in the Proxy Statement or any Company Subsidiary filing or amendment or supplement relating thereto, (iv) fail to recommend against any then-pending tender or exchange offer that constitutes an Acquisition Proposal within ten (10) Business Days after it is announced or (v) fail, within three (3) Business Days of a request by Terra REIT following the obligations undertaken public announcement of an Acquisition Proposal, to reaffirm the Terra BDC Board Recommendation (each such action set forth in this Section 6.057.3(b) being referred to herein as an “Adverse Recommendation Change”).
(c) Notwithstanding anything in this Agreement to the contrary, at any time prior to obtaining the Stockholder Approvals, and following the compliance with this Section 7.3(c), the Terra BDC Board may:
(i) make an Adverse Recommendation Change in response to an Acquisition Proposal, or terminate this Agreement pursuant to Section 9.1(c)(ii) in order to concurrently enter into an Alternative Acquisition Agreement with respect to an Acquisition Proposal, if: (A) such Acquisition Proposal did not result from a material breach of Section 7.3(a); (B) the Terra BDC Board (based on the recommendation of the Terra BDC Special Committee) determines in good faith (after consultation with outside counsel and a financial advisor) that such Acquisition Proposal constitutes a Superior Proposal and determines in good faith (after consultation with outside counsel) that its failure to take such action would be inconsistent with the duties of the Terra BDC directors under applicable Law; (C) Terra BDC shall notify Terra REIT in writing, at least four (4) Business Days prior to effecting such Adverse Recommendation Change (the “Superior Proposal Notice Period”), of its intention to effect such Adverse Recommendation Change or give notice of such termination (which notice shall include the material terms and conditions of such Superior Proposal and the identity of the Person making such Superior Proposal and include copies of the current drafts of all material agreements between Terra BDC and the Person making such Superior Proposal (it being understood and agreed that such notice or the public disclosure by Terra BDC of such notice shall not in and of itself constitute an Adverse Recommendation Change)); (D) during the Superior Proposal Notice Period, Terra BDC shall negotiate with Terra REIT in good faith (to the extent Terra REIT wishes to negotiate) to make such adjustments to the terms and conditions of this Agreement so that the Acquisition Proposal that is the subject of the Superior Proposal notice described in clause (C) above ceases to be a Superior Proposal; (E) after the expiration of the negotiation period described in clause (D) above, the Terra BDC Board (based on the recommendation of the Terra BDC Special Committee) determines in good faith (after consultation with outside counsel and a financial advisor and after taking into account any amendments to this Agreement that Terra REIT has irrevocably agreed in writing to make as a result of the negotiations contemplated by clause (D) above) that such Acquisition Proposal constitutes a Superior Proposal and determines in good faith (after consultation with outside counsel) that its failure to make an Adverse Recommendation Change or to give such notice of termination would be inconsistent with the duties of the Terra BDC directors under applicable Law; and (F) prior to Terra BDC entering into an Alternative Acquisition Agreement concerning such Superior Proposal, Terra BDC terminates this Agreement in accordance with Section 9.1(c)(ii); provided, that it being understood and agreed that any amendment to the financial terms or any other material term of such Superior Proposal shall require a new Superior Proposal notice, which shall require a new Superior Proposal Notice Period of two (2) Business Days, and compliance with this Section 7.3(c)(i) with respect to such new notice; or
(ii) make an Adverse Recommendation Change in response to an Intervening Event, if: (A) the Terra BDC Board (based on the recommendation of the Terra BDC Special Committee) determines in good faith (after consultation with outside counsel) that the failure to do so would be inconsistent with the duties of the Terra BDC directors under applicable Law; (B) Terra BDC shall notify Terra REIT in writing, at least four (4) Business Days prior to effecting such Adverse Recommendation Change (the “Intervening Event Notice Period”), of its intention to effect such Adverse Recommendation Change (which notice shall specify in reasonable detail the basis for the Adverse Recommendation Change and a description of the Intervening Event (it being understood and agreed that such notice or the public disclosure by Terra BDC of such notice shall not in and of itself constitute an Adverse Recommendation Change)), (C) during the Intervening Event Notice Period, Terra BDC shall negotiate with Terra REIT in good faith (to the extent Terra REIT wishes to negotiate) to make such adjustments to the terms and conditions of this Agreement such that failure to make an Adverse Recommendation Change would no longer be inconsistent with the duties of the Terra BDC directors under applicable Law, and (D) the Terra BDC Board (based on the recommendation of the Terra BDC Special Committee) shall determine, after the close of business on the last day of the Intervening Event Notice Period, in good faith (after consultation with outside counsel and after taking into account any amendments to this Agreement that Terra REIT has irrevocably agreed in writing to make as a result of the negotiations contemplated by clause (C) above) that, in light of the Intervening Event, failure to make an Adverse Recommendation Change would be inconsistent with the duties of the Terra BDC directors under applicable Law.
(d) Terra BDC shall promptly (and in any event, within one (1) Business Day) notify Terra REIT after it or any Terra BDC Subsidiary or any of their respective Representatives has received any Acquisition Proposal or inquiry, proposal or offer to enter into or seeking to have discussions or negotiations relating to a possible Acquisition Proposal. Such notice to Terra REIT shall indicate the identity of the Person making, and include the material terms and conditions, of such Acquisition Proposal, inquiry, proposal or offer (including a complete copy thereof if in writing and any related documents or correspondence). Following the date hereof, Terra BDC shall keep Terra REIT reasonably informed orally and in writing on a current basis (and in any event, within one (1) Business Day) of any material developments, discussions or negotiations regarding any Acquisition Proposal including providing a copy of all material documentation (including drafts) or material correspondence with respect thereto and upon the request of Terra REIT shall apprise Terra REIT of the status and details of such Acquisition Proposal. Terra BDC agrees that neither it nor any Terra BDC Subsidiary will enter into any agreement with any Person subsequent to the date hereof which prohibits Terra BDC or any Terra BDC Subsidiary from providing any information to Terra REIT in accordance with, or from otherwise complying with the terms of, this Section 7.3.
(e) Nothing contained in this Section 7.3 shall prohibit Terra BDC or the Terra BDC Board from (i) issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) under the Exchange Act or taking and disclosing a position contemplated by Rule 14e-2(a), 14d-9 or Item 1012(a) of Regulation M-A under the Exchange Act, or (ii) making any disclosure to the stockholders of Terra BDC if, in the good faith judgment of the Terra BDC Board (after consultation with outside counsel (and based on the recommendation of the Terra BDC Special Committee)), failure to so disclose would be inconsistent with the duties of the directors of Terra BDC under applicable Law, and disclosure referred to in clauses (i) and (ii) shall not be deemed to be an Adverse Recommendation Change so long as any such disclosure (A) includes the Terra BDC Board Recommendation, without any modification or qualification thereof or continues the prior recommendation of the Terra BDC Board, and (B) does not contain an express Adverse Recommendation Change; provided, that in no event shall this Section 7.3(e) affect Terra BDC’s obligations specified in Section 7.3(b).
(f) For purposes of this Agreement:
Appears in 2 contracts
Sources: Merger Agreement (Terra Income Fund 6, Inc.), Merger Agreement (Terra Property Trust, Inc.)
No Solicitation of Transactions. (a) The Company agrees that neither it From and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VIII, the Seller and the Seller Subsidiaries will not, nor will they authorize or permit any Company Subsidiary shallof their respective officers, and that it shall cause its and each Company Subsidiary's Representatives not directors, affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them to, directly or indirectly:
(i) solicit, initiate, solicit, encourage or otherwise induce the making, submission or announcement of any Acquisition Proposal,
(ii) participate in any discussions or negotiations regarding, or furnish to any person any material non-public information with respect to, or take any other action to facilitate (including by way of furnishing information) any inquiries inquiry or the making of any proposal, proposal that constitutes or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could may reasonably be expected to interfere with lead to, any Acquisition Proposal, or
(iii) enter into any contract, agreement, letter of intent or other arrangement relating to any Acquisition Transaction: provided, however, this Section 4.4(a) shall not prohibit the completion of the Merger Seller or the Seller’s Board of Directors from:
(A) furnishing material nonpublic information (other transactions contemplated than information regarding the Company supplied to the Seller by this Agreement (any such proposal the Company) regarding the Seller or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not the Seller Subsidiaries to, directly or indirectly, have any discussion entering into a customary confidentiality agreement with or provide entering or re-entering into discussions with, any confidential information person or data to any Person relating group in response to an Acquisition Proposal submitted by such person or engage group (and not withdrawn) if (x) the Seller’s Board of Directors reasonably determines in good faith that such Acquisition Proposal constitutes or is reasonably likely to result in a Superior Offer, and (y) the Seller’s Board of Directors concludes in good faith, after consultation with its outside legal counsel, that failure to take such action is reasonably likely to result in a breach by the Seller’s Board of Directors of its fiduciary obligations to the Seller’s stockholders under applicable Laws, provided that in any negotiations concerning an Acquisition Proposalsuch case neither the Seller nor any representative of the Seller and the Seller Subsidiaries shall have violated any of the restrictions set forth in this Section 4.4(a), or
(B) taking the actions described in subsections (b) or (c), below, as permitted thereby, provided that neither the Seller, the Seller Subsidiaries nor any representatives of the Seller and the Seller Subsidiaries shall have violated any of the restrictions set forth in this Section 4.4(a). At least five (5) days prior to furnishing any material nonpublic information to, or otherwise facilitate entering into discussions or negotiations with, any effort person or attempt group, the Seller shall:
(i) give the Company written notice of the identity of such person or group and of the Seller’s intention to make furnish material nonpublic information to, or implement enter into discussions or negotiations with, such person or group, and
(ii) receive from such person or group an Acquisition Proposal executed confidentiality agreement containing customary limitations on the use and disclosure of all written and oral nonpublic information furnished to such person or accept an Acquisition Proposal; providedgroup by or on behalf of the Seller, howeverand contemporaneously with furnishing any such information to such person or group, that nothing contained the Seller shall furnish such information to the Company (to the extent such information has not been previously furnished by the Seller to the Company). Nothing in this Agreement Section 4.4(a) shall prevent the Company Seller or the Company's Seller’s Board of Directors from (i) complying with Rule Rules 14e-2 and 14d-9 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with. The Seller and the Seller Subsidiaries will immediately cease, or providing any information toas of the date hereof, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal, subject to the right to renew such activities, discussions or negotiations in accordance with this Section 4.4. The Company agrees Without limiting the foregoing, it is understood that it shall keep IHK informed, on a current basis, any violation of the status and terms of any such proposals or offers and the status of any such discussions or negotiations.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken restrictions set forth in this Section 6.054.4 by any officer or director of the Seller or any of the Seller Subsidiaries or any investment banker, attorney or other advisor or representative of the Seller or any of the Seller Subsidiaries shall be deemed to be a breach of this Section 4.4 by the Seller.
Appears in 2 contracts
Sources: Merger Agreement (Gold Banc Corp Inc), Merger Agreement (Marshall & Ilsley Corp/Wi/)
No Solicitation of Transactions. (a) The Company agrees that neither it From and after the date of this Agreement until the Effective Time or termination of this Agreement pursuant to Article VIII, the Seller and the Seller Subsidiaries will not, nor will they authorize or permit any Company Subsidiary shallof their respective officers, and that it shall cause its and each Company Subsidiary's Representatives not directors, Affiliates or employees or any investment banker, attorney or other advisor or representative retained by any of them to, directly or indirectly:
(i) solicit, initiate, solicit, encourage or otherwise induce the making, submission or announcement of any Acquisition Proposal;
(ii) participate in any discussions or negotiations regarding, or furnish to any Person any material non-public information with respect to, or take any other action to facilitate (including by way of furnishing information) any inquiries inquiry or the making of any proposal, proposal that constitutes or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could may reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (lead to, any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor ; or
(iii) enter into any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data Contract relating to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition ProposalTransaction; provided, however, that nothing contained in this Agreement Section 4.4(a) shall prevent not prohibit the Company Seller or the Company's Seller’s Board of Directors from from:
(iA) complying with Rule 14e-2 promulgated under furnishing material nonpublic information (other than information regarding the Exchange Act with regard Company supplied to an Acquisition Proposal; (iithe Seller by the Company) engaging in any discussions regarding the Seller or negotiations withthe Seller Subsidiaries to, or providing any information toentering into a customary confidentiality agreement with or entering or re-entering into discussions with, any Person in response to an unsolicited bona fide written Acquisition Proposal submitted by any such Person; or Person (iiiand not withdrawn) recommending if (x) the Seller’s Board of Directors reasonably determines in good faith, after taking into consideration the advice of and consultation with an investment banking firm of national reputation (which includes the Seller’s current financial advisor), that such an unsolicited bona fide written Acquisition Proposal constitutes or is reasonably likely to the holders of Company Common Stock if result in a Superior Offer, and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (Ay) the Company's Seller’s Board of Directors concludes in good faith (faith, after consultation with its outside legal counsel and financial advisors) counsel, that failure to take such Acquisition Proposal action is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, likely to result in a transaction more favorable breach by the Seller’s Board of Directors of its fiduciary obligations to holders of Company Common Stock than the transaction contemplated by this Agreement (Seller’s stockholders under applicable Laws, provided that in any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"case neither the Seller nor any representative of the Seller and the Seller Subsidiaries shall have violated any of the restrictions set forth in this Section 4.4(a), or
(B) taking the Company's Board actions described in the proviso of Directors determines subsection (c), below, as permitted thereby, provided that none of the Seller, the Seller Subsidiaries or any representatives of the Seller and the Seller Subsidiaries shall have violated any of the restrictions set forth in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, this Section 4.4(a). At least ten (C10) days prior to providing furnishing any material nonpublic information to, or data to entering into discussions or negotiations with, any Person in connection with a Superior Proposal by any such Person, the Company's Board Seller shall:
(i) give the Company written notice of Directors receives the identity of such Person and of the Seller’s intention to furnish material nonpublic information to, or enter into discussions or negotiations with, such Person; and
(ii) receive from such Person an executed confidentiality agreement containing customary limitations on terms substantially similar the use and disclosure of all written and oral nonpublic information furnished to those contained in such Person by or on behalf of the Confidentiality Agreement Seller, and (D) prior contemporaneously with furnishing any such information to providing any information or data to any Person or entering into discussions or negotiations with any such Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any Seller shall furnish such information requested from, or any to the Company (to the extent such discussions or negotiations sought information has not been previously furnished by the Seller to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiations).
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken in this Section 6.05.
Appears in 2 contracts
Sources: Merger Agreement (Marshall & Ilsley Corp/Wi/), Merger Agreement (United Heritage Bankshares of Florida Inc)
No Solicitation of Transactions. (a) Section 5.4.1 The Company agrees that neither that, prior to the Effective Time, it nor shall not, and shall not authorize or permit any Company Subsidiary shall, and that it shall cause its and each or Company Subsidiary's Representatives not toRepresentative, directly or indirectly, initiate, solicit, to take any action to (A) encourage or otherwise facilitate (including by way of furnishing non-public information), solicit, initiate or facilitate any Acquisition Proposal, (B) enter into any agreement with respect to any Acquisition Proposal or enter into any agreement, arrangement or understanding requiring it to abandon, terminate or fail to consummate the Merger or any other transaction contemplated by this Agreement or (C) participate in any way in discussions or negotiations with, or furnish any information to, any person in connection with, or take any other action to facilitate any inquiries or the making of any proposalproposal that constitutes, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not lead to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent if, at any time prior to the consummation of the Offer, the Company or Board determines in good faith, after consultation with outside counsel, that it would otherwise constitute a breach of its fiduciary duties to stockholders, the Company may, in response to a Superior Proposal and subject to the Company's Board of Directors from compliance with Section 5.4.2 and Section 2.8.1, (i1) complying furnish information with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal respect to the holders of Company Common Stock if and only the Company Subsidiaries to the extent that, in any person making such case as is referred Superior Proposal pursuant to in clause (ii) or (iii), (A) a customary confidentiality agreement the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects benefits of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction terms of which are no more favorable to holders the other party to such confidentiality agreement than those in place with Parent as amended as of Company Common Stock than the transaction contemplated by this Agreement date hereof and (any 2) following the execution of such more favorable Acquisition Proposal being hereinafter referred a confidentiality agreement, participate in discussions with respect to as a "such Superior Proposal"), (B) the Company's Board . Upon execution of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued withthis Agreement, the Company, any Company Subsidiary or any of its affiliates and their Representatives indicatingrespective officers, in connection with such noticedirectors, the name of such Person employees, representatives legal counsel, advisors and the terms and conditions of any proposals or offers. The Company agrees that it will agents shall cease immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to an Acquisition Proposal and promptly request that all confidential information with respect thereto furnished on behalf of the Company be returned.
Section 5.4.2 The Company shall immediately advise Parent of any inquiry received by it relating to any potential Acquisition Proposal and of the terms of any proposal or inquiry, including the identity of the person and its affiliates making the same, that it may receive in respect of any such potential Acquisition Proposal. The , or of any information requested from it or of any negotiations or discussions being sought to be initiated with it, shall furnish to the Purchaser a copy of any such proposal or inquiry, if it is in writing, or a written summary of any such proposal or inquiry (as well as of any additional information received by the Company agrees that with respect to an Acquisition Proposal), if it is not in writing and shall keep IHK informed, Parent fully informed on a current basis, of the status and terms of any such proposals or offers and basis with respect to the status of any such negotiations or discussions or negotiationsand any developments with respect to the foregoing.
Section 5.4.3 Neither the Company Board nor any committee thereof shall (bA) The withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent, the approval or recommendation by the Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative Board or such committee of the Offer and the Merger and the adoption and approval of this Agreement, (B) approve or recommend, or propose publicly to approve or recommend, any Acquisition Proposal other than the Offer and the Merger, or (C) cause the Company to enter into any letter of intent, agreement in principle, acquisition agreement or other agreement related to any Company Subsidiary of Acquisition Proposal other than the obligations undertaken Offer and the Merger. Nothing contained in this Section 6.055.4.3 shall prohibit the Company (1) from taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act with regard to an Acquisition Proposal (provided that the Company Board shall not withdraw or modify in an adverse manner its approval or recommendation of the Offer, the Merger or this Agreement except as set forth below) or (2) in the event that a Superior Proposal is made and the Company Board determines in good faith, after consultation with outside counsel, that it would otherwise constitute a breach of its fiduciary duty to stockholders, from withdrawing or modifying its recommendation of the Offer and the Merger prior to the purchase of Shares pursuant to the Offer, so long as the Company continues to comply with all other provisions of this Agreement and so long as all the conditions to the Company's right to terminate this Agreement in accordance with Section 7.1.6 have been satisfied (including the expiration of the five business day period described therein and the payment of all amounts required pursuant to Section 7.2).
Appears in 2 contracts
Sources: Merger Agreement (Innoveda Inc), Merger Agreement (Mentor Graphics Corp)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary shallwill, and that it the Company shall use its reasonable best efforts to cause its and each their respective directors, officers, employees, agents, investment bankers, attorneys, accountants, other advisors or representatives (such persons, together with Subsidiaries, collectively, the “Company Subsidiary's Representatives Representatives”) not to, directly or indirectly, initiate, to (i) solicit, initiate or knowingly encourage or otherwise facilitate (including by way of furnishing non-public information) ), or take any inquiries or other action to knowingly facilitate the making of any proposal, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, (ii) enter into, continue or otherwise engage or participate in any discussions or negotiations regarding, or furnish to any person, any information with respect to, or otherwise knowingly cooperate, encourage or facilitate any effort or attempt to make or implement an Acquisition Proposal any proposal or accept inquiry that constitutes, or could reasonably be expected to result in, an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal approve, endorse or recommend, or propose publicly to the holders of Company Common Stock if and only to the extent thatapprove, in endorse or recommend, any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and wouldor (iv) submit to a vote of its stockholders, if consummatedapprove, result endorse or recommend, or publicly announce an intention to approve, endorse or recommend, or enter into, any letter of intent, agreement in a transaction more favorable principle, merger agreement, acquisition agreement, option agreement amalgamation agreement, scheme of arrangement or other similar agreement relating to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as (other than a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Qualifying Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations in accordance with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offersSection 7.05(b)). The Company agrees that it will immediately shall cease and cause to be terminated any all existing activities, discussions or negotiations with any parties conducted heretofore with respect to an Acquisition Proposal. The Company shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party.
(b) Notwithstanding anything to the contrary in this Section 7.05, if the Company or any of the Company Representatives receives an unsolicited written Acquisition Proposal from any person or group of persons at any time prior to the Company Stockholder Meeting, the Company and Company Representatives may (i) contact such person or group of persons to clarify the terms and conditions thereof, and (ii) if the Company Board (or any committee thereof) has (A) determined, in its good faith judgment (after consultation with the Company’s financial advisors and outside legal counsel), that such Acquisition Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, and (B) obtained from such person a Qualifying Confidentiality Agreement, furnish information to, and enter into discussions and negotiations with, such person or group of persons; provided, that the Company shall have provided written notice to Parent of its intent to furnish information or enter into discussions or negotiations with such person or group of persons at least one business day prior to taking any such action.
(c) Promptly (but in no event more than 24 hours) following receipt thereof, the Company shall advise Parent in writing of the receipt of any Acquisition Proposal, or any inquiry, discussions or negotiations with respect to any Acquisition Proposal and the terms and conditions of such Acquisition Proposal and the Company shall promptly provide to Parent a copy of any Acquisition Proposal made in writing provided to the Company and copies of any written materials received by the Company in connection therewith. The Company agrees that it shall keep Parent reasonably informed of the status of any discussions or negotiations with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informedsimultaneously provide to Parent any non-public information concerning the Company that may be provided (pursuant to Section 7.05(b)) to any other person or group of persons in connection with any Acquisition Proposal which was not previously provided to Parent.
(d) Notwithstanding anything to the contrary contained in Section 7.05, on at any time prior to the Company Stockholder Meeting, if the Company has received a current basis, of Superior Proposal (after giving effect to the status and terms of any revised offer by Parent pursuant to this Section 7.05(d)), the Company Board may (x) in connection with such proposals Superior Proposal, make a Change in Company Recommendation or offers (y) terminate this Agreement for the purpose of causing the Company to enter into an acquisition agreement with respect to such Superior Proposal (provided that the Company shall have paid the Termination Fee prior to or concurrently with such termination of this Agreement in accordance with Section 9.03(b)), which the Company shall enter into concurrently with or immediately following such termination, if the Company Board has determined in good faith, after consultation with the Company’s financial advisors and outside counsel, that the failure to take such action would be inconsistent with the directors’ exercise of their fiduciary obligations to the Company and its stockholders under applicable Law and the status Company’s certificate of incorporation; provided, however, that if the Change in Company Recommendation pursuant to clause (x) or the termination of this Agreement pursuant to clause (y) is to be effected as a result of a Superior Proposal, then the Company Board may not take the actions set forth in clause (x) or (y), as the case may be, unless:
(i) the Company shall have provided prior written notice to Parent at least five (5) calendar days in advance (the “Notice Period”) of its intention to take such actions, which notice shall advise Parent that the Company Board has received a Superior Proposal, specify the material terms and conditions of such Superior Proposal and indicate that the Company Board intends to effect a Change in Company Recommendation or terminate this Agreement and the manner in which it intends (or may intend) to take such action (a “Notice of Superior Proposal”), and
(ii) during the Notice Period, the Company shall, and shall cause its financial advisors and outside counsel to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement so that such Acquisition Proposal ceases to constitute (in the judgment of the Company Board) a Superior Proposal. If during the Notice Period any revisions are made to the Superior Proposal, the Company shall deliver a new written notice to Parent specifying the details of any such discussions revisions and shall comply with the requirements of this Section 7.05(d) with respect to such new written notice, except that the new Notice Period shall be two (2) calendar days. Any disclosure that the Company Board may be compelled to make with respect to the receipt of a proposal or negotiationsoffer for an Acquisition Proposal or otherwise in order to comply with its fiduciary obligations to the Company and its stockholders under applicable Law and the Company’s certificate of incorporation or Rule 14d-9 or 14e-2(a) promulgated under the Exchange Act will not constitute a violation of this Agreement; provided, that such disclosure does not violate any provision of this Section 7.5(d) (it being understood that a mere “stop, look and listen” disclosure shall not violate this Section 7.5(d) or constitute a Change in Company Recommendation). Any Change in Company Recommendation shall not change the approval of the Company Board for purposes of causing any state takeover statute or other state law to be inapplicable to the transactions contemplated hereby.
(be) The Notwithstanding Section 7.05(d), at any time prior to the Company agrees that it will take Stockholder Approval, the necessary steps Company Board may, other than in response to promptly inform each a Superior Proposal, make a Change in Company Subsidiary and each Representative Recommendation if the Company Board determines, in its good faith judgment prior to the time of the Company or any Stockholder Meeting and after consultation with outside legal counsel, that failure to make a Change in Company Subsidiary Recommendation would be inconsistent with the directors’ exercise of their fiduciary obligations to the obligations undertaken Company and its stockholders under applicable Law and the Company’s certificate of incorporation; provided, that the Company Board may not take the actions set forth in this Section 6.057.05(e) unless prior thereto the Company shall take the actions set forth in clauses (i) and (ii) of Section 7.05(d) as if a Superior Proposal had been received by the Company.
Appears in 2 contracts
Sources: Merger Agreement (Bunge LTD), Merger Agreement (Corn Products International Inc)
No Solicitation of Transactions. (a) The Subject to Section 5.4(b), from and after the date of this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with Article VII, the Company agrees that neither it nor any Company Subsidiary shallshall not, and that it shall cause its the Company Subsidiaries and each the Company Subsidiary's Representatives not to, directly or indirectly, : (i) initiate, solicit, solicit or knowingly encourage or otherwise facilitate (including by way of furnishing providing information) any inquiries or facilitate the making submission of any proposalinquiries, proposals or offers or any other efforts or attempts that constitute, or would reasonably be expected to lead to, any Acquisition Proposal or engage in any discussions or negotiations or otherwise cooperate with or assist or participate in or facilitate any such inquiries, proposals, offers, discussions or negotiations, (ii) furnish to any Person any nonpublic information in connection with an Acquisition Proposal or any inquiry, proposal or offer that would reasonably be expected to lead to an Acquisition Proposal, (iii) approve or recommend, or publicly propose to approve or recommend, an Acquisition Proposal, (iv) withdraw, change, amend, modify or qualify, or propose publicly to withdraw, change, amend, modify or qualify, in a manner adverse to Parent or Merger Sub, the Company Board Recommendation, (v) enter into any merger agreement, letter of intent, agreement in principle, share purchase agreement, asset purchase agreement, share exchange agreement, option agreement or other agreement relating to an Acquisition Proposal or enter into any agreement or agreement in principle requiring the Company to abandon, terminate or fail to consummate the transactions contemplated hereby or breach its obligations hereunder, or (vi) resolve, propose or agree to do any of the foregoing (any action or failure to act set forth in the foregoing clauses (iii) or (iv), a “Change of Board Recommendation”). The Company shall immediately cease and cause to be terminated any activities, discussion or negotiation with any Persons conducted theretofore by the Company, the Company Subsidiaries or any Company Representatives with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution any Acquisition Proposal and request to be returned or similar transaction involving, destroyed all confidential information provided by or any purchase or sale on behalf of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary thatto such Person.
(b) Notwithstanding anything to the contrary contained in Section 5.4(a), in if at any such case, could reasonably be expected to interfere with time following the completion date of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred and prior to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from Acceptance Time (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to Company has received an unsolicited bona fide written Acquisition Proposal by from a third party, (ii)(A) such Acquisition Proposal (or any precursor thereto) did not result from a breach of this Section 5.4 and the Company has complied with the terms of this Section 5.4 in all respects with respect to such Person; or Acquisition Proposal (and any precursor thereto) and (B) the Company has not breached this Section 5.4 in any material respect, (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes determines in good faith (faith, after consultation with its legal counsel financial advisors of nationally recognized reputation (which Parent and financial advisorsMerger Sub acknowledge includes the Company Financial Advisors) and outside counsel, that such Acquisition Proposal is constitutes or could reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, be expected to result in a transaction more favorable to holders of Superior Proposal and (iv) after consultation with its outside counsel, the Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that failure to take such action is necessary for it to act in a manner consistent would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable lawLaw, then the Company and the Company Representatives may (CA) prior furnish information with respect to providing the Company and the Company Subsidiaries to the Person making such Acquisition Proposal and (B) participate in discussions or negotiations with the Person making such Acquisition Proposal regarding such Acquisition Proposal; provided that the Company (x) will not, and will not allow the Company Subsidiaries and the Company Representatives to, disclose any nonpublic information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person without first entering into an executed confidentiality agreement on terms substantially similar to those contained in the Acceptable Confidentiality Agreement and (Dy) prior will promptly (and in no event later than 24 hours after providing such information) provide to providing Parent any information concerning the Company or data the Company Subsidiaries provided to such other Person not previously provided to Parent.
(c) The Company shall promptly (and in any Person or entering into discussions or negotiations with any Person, event within 24 hours) notify Parent in the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, event that the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Company Representative receives (i) any Acquisition Proposal or indication by any Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause is considering making an Acquisition Proposal, (ii) any request for non-public information relating to be terminated the Company or any existing activities, Company Subsidiary other than requests for information unrelated to an Acquisition Proposal or (iii) any inquiry or request for discussions or negotiations with any parties conducted heretofore with respect to regarding any Acquisition Proposal. The Company agrees that it shall notify Parent promptly (and in any event within 24 hours) of the identity of such Person and provide Parent a copy of such Acquisition Proposal, indication, inquiry or request (or, where no such copy is available, a reasonably detailed description of such Acquisition Proposal, indication, inquiry or request), including any modifications thereto. The Company shall keep IHK informed, Parent reasonably informed on a current basis, of basis (and in any event at Parent’s request and otherwise no later than 24 hours after the status and terms occurrence of any such proposals changes, developments, discussions or offers and negotiations) of the status of any such Acquisition Proposal, indication, inquiry or request (including the terms and conditions thereof and of any modification thereto), and any material developments, discussions and negotiations. Without limiting the foregoing, the Company shall promptly (and in any event within 24 hours) notify Parent orally and in writing if it determines to begin providing information or to engage in discussions or negotiationsnegotiations concerning an Acquisition Proposal pursuant to Section 5.4(b).
(bd) Notwithstanding anything to the contrary contained in Section 5.4(a), but subject to Section 5.4(f), if the Company receives an unsolicited Acquisition Proposal which the Company Board concludes in good faith, after consultation with outside counsel and its financial advisors, constitutes a Superior Proposal, after giving effect to all of the adjustments to the terms of this Agreement which may be offered by Parent (including pursuant to clause (ii) of Section 5.4(f) below), and so long as (A) such Acquisition Proposal (and any precursor thereto) did not result from a breach of this Section 5.4 and the Company has complied with the terms of this Section 5.4 in all respects with respect to such Acquisition Proposal (and any precursor thereto) and (B) the Company has not breached this Section 5.4 in any material respect, the Company Board may at any time prior to the Acceptance Time, if it determines in good faith, after consultation with outside counsel, that failure to take such action would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law, (x) effect a Change of Board Recommendation with respect to such Superior Proposal and/or (y) terminate this Agreement to enter into a definitive agreement with respect to such Superior Proposal; provided, however, that the Company shall not terminate this Agreement pursuant to the foregoing clause (y), and any purported termination pursuant to the foregoing clause (y) shall be void and of no force or effect, unless in advance of or concurrently with such termination the Company pays or causes to be paid to Parent the Termination Fee and otherwise complies with the provisions of Section 7.1(e) and Section 7.2.
(e) Notwithstanding anything to the contrary contained in Section 5.4(a), but subject to Section 5.4(f), the Company Board may, at any time prior to the Acceptance Time, effect a Change of Board Recommendation for a reason unrelated to an Acquisition Proposal if the Company Board has determined in good faith, after consultation with its outside counsel, that, in light of material facts, events or circumstances that have arisen or occurred after the date of this Agreement that were not known by or reasonably foreseeable to the Company or the Company Board prior to the date hereof, other than (i) changes in the market price or trading volume of the Shares (however, the underlying reasons for such changes may constitute an Intervening Event), (ii) the timing of any consents, registrations, approvals, permits, clearances or authorizations required to be obtained prior to the Effective Time by the Company or Parent or any of their respective Subsidiaries from any Governmental Entity in connection with this Agreement and the consummation of the Offer, the Merger and the other transactions contemplated hereby, (iii) an Acquisition Proposal, or an inquiry, proposal or offer that could reasonably be expected to lead to an Acquisition Proposal, or the consequences thereof, (iv) the fact that, in and of itself, the Company exceeds any internal or published industry analyst projections or forecasts or estimates of revenues or earnings (however, the underlying reasons for such events may constitute an Intervening Event) or (v) events set forth on Section 5.4(e) of the Company Disclosure Schedule (an “Intervening Event”), failure to take such action would be inconsistent with its fiduciary duties to the stockholders of the Company under applicable Law.
(f) The Company Board may not withdraw, modify or amend the Company Board Recommendation in a manner adverse to Parent pursuant to clause (x) of Section 5.4(d) or Section 5.4(e) or terminate this Agreement pursuant to clause (y) of Section 5.4(d) unless (A) in the case of actions taken in relation to a Superior Proposal, (1) such Superior Proposal (and any precursor thereto) did not result from a breach of this Section 5.4 and the Company has complied with the terms of this Section 5.4 in all respects with respect to such Superior Proposal (and any precursor thereto) and (2) the Company has not breached this Section 5.4 in any material respect, and (B) whether or not such action relates to a Superior Proposal:
(i) the Company shall have provided prior written notice to Parent, at least four Business Days in advance (the “Notice Period”), of its intention to take such action, which notice shall specify (A) if such action is to be taken in relation to a Superior Proposal, the material terms and conditions of such Superior Proposal (including the identity of the party making such Superior Proposal), and shall have contemporaneously provided a copy of the relevant proposed transaction agreements with the party making such Superior Proposal and other material documents, including the definitive agreement with respect to such Superior Proposal (the “Alternative Acquisition Agreement”) or (B) if such action is to be taken in relation to an Intervening Event, a reasonably detailed description of the underlying facts giving rise to, and the reasons for taking, such action; and
(ii) prior to effecting such Change of Board Recommendation or terminating this Agreement to enter into a definitive agreement with respect to a Superior Proposal, the Company shall, and shall cause the Company Representatives to, during the Notice Period, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments to the terms and conditions of this Agreement so that (A) if such action is to be taken in relation to a Superior Proposal, the Acquisition Proposal ceases to constitute a Superior Proposal or (B) if such action is to be taken in relation to an Intervening Event, the need for making a Change of Board Recommendation is obviated. In the event of any revisions to the Superior Proposal or material developments in an Intervening Event, the Company shall be required to deliver a new written notice to Parent and to comply with the requirements of this Section 5.4(f) with respect to such new written notice; provided that the Notice Period shall be two Business Days in respect of such revisions.
(g) The Company agrees that it will take any violation of the necessary steps to promptly inform each Company Subsidiary and each Representative restrictions set forth in this Section 5.4 by any of the Company or any Company Subsidiary Representatives shall be deemed to be a breach of this Agreement (including this Section 5.4) by the obligations undertaken Company.
(h) Nothing contained in this Section 6.055.4 or elsewhere in this Agreement shall prohibit the Company Board from disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a) and Rule 14d-9 promulgated under the Exchange Act.
(i) Nothing contained in this Section 5.4 or elsewhere in this Agreement shall prohibit the Company from responding to any unsolicited proposal or inquiry solely by (i) advising the Person making such proposal or inquiry of the terms of this Section 5.4 or (ii) seeking to clarify the terms and conditions thereof.
Appears in 2 contracts
Sources: Merger Agreement (Salix Pharmaceuticals LTD), Merger Agreement (Valeant Pharmaceuticals International, Inc.)
No Solicitation of Transactions. (a) The Company agrees that neither it nor Subject to Section 6.1, none of CPA14 or any Company CPA14 Subsidiary shall, and that nor shall it shall cause its and each Company Subsidiary's Representatives not toauthorize or permit, directly or indirectly, any officer, director, investment advisor, agent, investment banker, financial advisor, attorney, accountant, broker, finder or other agent, representative or controlled Affiliate of CPA14 or any CPA14 Subsidiary to initiate, solicit, encourage or otherwise facilitate (including by way of furnishing informationnonpublic information or assistance) any inquiries or the making of any proposalproposal or other action that constitutes, or offer may reasonably be expected to lead to, any Competing Transaction, or enter into discussions or negotiate with any Person in furtherance of such inquiries or to obtain a Competing Transaction. CPA14 shall, and shall cause the CPA14 Subsidiaries to, take all actions reasonably necessary to cause their respective officers, directors, investment advisors, investment bankers, financial advisors, attorneys, accountants, brokers, finders and any other agents, representatives or controlled Affiliates to, immediately cease any discussions, negotiations or communications with any party or parties with respect to any Competing Transaction. CPA14 shall be responsible for (x) any failure on the part of it, any of the CPA14 Subsidiaries or any of their respective officers and directors to comply with this Section 4.5(a) and (y) any material failure by their respective employees, agents, investment bankers, financial advisors, attorneys, accountants, brokers, finders or other representatives or controlled Affiliates to comply with this Section 4.5(a). CPA14 shall promptly request each person that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring (whether by merger, reorganizationacquisition, stock sale, asset sale or otherwise) CPA14 or any CPA14 Subsidiary, if any, to return or destroy all confidential information heretofore furnished to such person by or on behalf of CPA14 or any CPA14 Subsidiary.
(b) CPA14 shall notify CPA16 in writing (as promptly as practicable but in any event within 24 hours of receipt) of the relevant details relating to all inquiries and proposals (including the identity of the parties, price and other material terms thereof) which it or any of the CPA14 Subsidiaries or any of their respective officers, directors, employees, agents, investment bankers, financial advisors, attorneys, accountants, brokers, finders or other representatives or controlled Affiliates may receive after the date hereof relating to any of such matters and shall promptly inform CPA16 in writing with respect to any such inquiry or proposal that becomes reasonably likely to lead to a proposal for a Competing Transaction, regardless of whether or not such proposal is likely to lead to a Superior Competing Transaction.
(c) For purposes of this Agreement, a “Competing Transaction” shall mean any of the following (other than the transactions expressly provided for in this Agreement): (i) any merger, consolidation, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution combination or similar transaction involving, involving CPA14 (or any purchase or sale of all or any significant portion of the assets material CPA14 Subsidiaries); (ii) any sale, lease, exchange, mortgage, pledge, transfer or 20other disposition of 50% or more of the equity securities ofassets of CPA14 and the CPA14 Subsidiaries, the Company or any Company Subsidiary thattaken as a whole, in a single transaction or series of related transactions, excluding any such casebona fide financing transactions which do not, could reasonably be expected to interfere with individually or in the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectlyaggregate, have any discussion with as a purpose or provide any confidential information effect the sale or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board transfer of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any control of such Personassets; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to any tender offer or exchange offer for 50% or more of the voting power in the election of directors exercisable by the holders of Company outstanding CPA14 Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiationsCPA14 Subsidiaries).
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken in this Section 6.05.
Appears in 2 contracts
Sources: Merger Agreement (Corporate Property Associates 14 Inc), Agreement and Plan of Merger (Carey W P & Co LLC)
No Solicitation of Transactions. (a) The Until the Effective Time or, if earlier, the valid termination of this Agreement in accordance with Article VIII, except as set forth in Section 6.3(b):
(i) the Company agrees that neither it nor any Company Subsidiary shalland its subsidiaries shall not, and that it shall cause its and each Company Subsidiary's their respective Representatives not to, directly or indirectly, initiate, :
(A) solicit, initiate or take any other action knowingly to facilitate or encourage any Acquisition Proposal or otherwise facilitate (including by way of furnishing information) any inquiries or the making of any proposalinquiry, proposal or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, that could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred lead to as an "Acquisition Proposal"). The Company further agrees that neither it nor ;
(B) engage in, continue or otherwise participate in any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly discussions or indirectly, have any discussion with or provide any confidential information or data to any Person relating to negotiations regarding an Acquisition Proposal or engage in any negotiations concerning inquiry, proposal or offer that could reasonably be expected to lead to an Acquisition Proposal, or otherwise facilitate provide any effort non-public information or attempt data concerning the Company or any of its subsidiaries to make any Person (other than Parent, Merger Sub or implement any designees of Parent or Merger Sub) in furtherance of such Acquisition Proposal or such inquiry, proposal or offer;
(C) approve, endorse, recommend, execute or enter into any letter of intent, agreement in principle, merger agreement, acquisition agreement, option agreement or other similar agreement (other than an Acceptable Confidentiality Agreement) providing for or relating to any Acquisition Proposal or any inquiry, proposal or offer that could reasonably be expected to lead to an Acquisition Proposal (the “Alternative Acquisition Agreement”); or
(D) amend or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent grant any waiver or release under any standstill or similar agreement with respect to any class of equity interests of the Company or any of its subsidiaries (provided that if the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in its good faith judgement upon the recommendation of the Special Committee, after consultation with its financial advisor and outside legal counsel counsel, that the failure to take such action is necessary for it to act in a manner consistent would be inconsistent with its fiduciary duties under applicable lawLaw, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by the Company may waive any such Person, provision solely to the Company's extent necessary to permit the Person bound by such provision to make an Acquisition Proposal to the Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in a confidential basis); and
(ii) the Confidentiality Agreement Company and its subsidiaries shall, and shall cause their respective Representatives to, (DA) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties Persons conducted heretofore with respect to any Acquisition Proposal or any inquiry, proposal or offer that could reasonably be expected to lead to an Acquisition Proposal. ; and (B) use their reasonable best efforts to request each Person that has heretofore executed a confidentiality agreement in connection with such Person’s consideration of an Acquisition Proposal to return (or if permitted by the applicable confidentiality agreement, destroy) all information required to be returned (or, if applicable, destroyed) by such Person under the terms of the applicable confidentiality agreement.
(b) Notwithstanding anything to the contrary in this Agreement, at any time prior to the receipt of the Company Requisite Vote, the Company, its subsidiaries and its and their respective Representatives may, following the receipt of an unsolicited bona fide written Acquisition Proposal after the date of this Agreement that did not result from a breach of Section 6.2(b) or Section 6.3 (in each case other than any immaterial non-compliance that does not adversely affect Parent or Merger Sub):
(i) contact the Person who has made such Acquisition Proposal to clarify the terms and conditions thereof solely to the extent the Board of Directors (upon the recommendation of the Special Committee), or the Special Committee, shall have determined in good faith that such contact is necessary to clarify ambiguities in the terms or conditions proposed in order to determine whether such Acquisition Proposal constitutes a Superior Proposal or could reasonably be expected to result in a Superior Proposal;
(ii) provide information (including any non-public information or data concerning the Company or any of its subsidiaries) in response to the request of the Person or group of Persons who has made such Acquisition Proposal, if and only if, prior to providing such information, the Company has received from the Person or group of Persons so requesting such information an executed Acceptable Confidentiality Agreement; provided that the Company shall promptly (and no later than the same day) make available to Parent any non-public information concerning the Company or any of its subsidiaries that is provided to any Person or group of Persons making such Acquisition Proposal that is given such access and that was not previously made available to Parent or its Representatives; or
(iii) engage or participate in any discussions or negotiations with the Person or group of Persons who has made such Acquisition Proposal; provided that prior to taking any action described in Section 6.3(b)(ii) or Section 6.3(b)(iii), the Board of Directors (upon the recommendation of the Special Committee), or the Special Committee, shall have determined in its good faith judgement, after consultation with its financial advisor and outside legal counsel, that such Acquisition Proposal either constitutes a Superior Proposal or could reasonably be expected to result in a Superior Proposal and that the failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Laws.
(c) Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Company Requisite Vote, if the Company shall have received an Acquisition Proposal that was not obtained in violation of Section 6.2(b) or Section 6.3 (in each case other than any immaterial non-compliance that does not adversely affect Parent or Merger Sub) and the Board of Directors determines in its good faith judgement upon the recommendation of the Special Committee, after consultation with its financial advisor and outside legal counsel, that such Acquisition Proposal constitutes a Superior Proposal and the failure to effect a Change of Recommendation with respect to such Acquisition Proposal would be inconsistent with the directors’ fiduciary duties under applicable Laws, the Board of Directors (upon the recommendation of the Special Committee) or the Special Committee may effect a Change of Recommendation and/or authorize the Company to terminate this Agreement in accordance with Section 8.1(d)(iii) to enter into an Alternative Acquisition Agreement providing for such Superior Proposal immediately prior to, concurrently with or immediately following such termination, but only if:
(i) the Company shall have complied with the requirements of Section 6.2(b), Section 6.3(a) and Section 6.3(b) with respect to such Acquisition Proposal (other than immaterial non-compliance that does not adversely affect Parent or Merger Sub);
(ii) (A) the Company shall have provided prior written notice (the “Notice of Superior Proposal”) to Parent that the Company has received a Superior Proposal, specifying the identity of the party making such Superior Proposal and the material terms thereof and copies of all relevant documents (other than redacted terms of financing documents) relating to such Acquisition Proposal received, indicating that the Company intends to effect a Change of Recommendation or take any other action described in this Section 6.3(c) (it being understood that the Notice of Superior Proposal or any amendment or update thereto or the determination to so deliver such notice shall not constitute a Change of Recommendation), and (B) the Company (1) shall, and shall cause its Representatives to, during the period beginning at 5:00 p.m. Hong Kong Time on the day of delivery by the Company to Parent of such Notice of Superior Proposal (or, if delivered after 5:00 p.m. Hong Kong Time or on any day other than a Business Day, beginning at 5:00 p.m. Hong Kong Time on the next Business Day) and ending five Business Days later at 5:00 p.m. Hong Kong Time (the “Superior Proposal Notice Period”) negotiate with Parent and its Representatives in good faith (to the extent Parent desires to negotiate) any proposed modifications to the terms and conditions of this Agreement or the Financing Commitments, and (2) shall permit Parent and its Representatives during the Superior Proposal Notice Period to make a presentation to the Board of Directors or the Special Committee regarding this Agreement or the Financing Commitments and any adjustments with respect thereto (to the extent Parent desires to make such presentation); provided that, in the event of any material revisions to the Acquisition Proposal, the Company shall deliver a new written notice to Parent and comply again with the requirements of this Section 6.3(c)(ii) with respect to such new written notice; provided, further, that with respect to each such new written notice to Parent, the Superior Proposal Notice Period shall be deemed to be a two Business Day period rather than the five Business Day period first described above; and
(iii) following the end of the Superior Proposal Notice Period (and any renewed period thereof), the Board of Directors (upon the recommendation of the Special Committee) or the Special Committee, shall have determined in its good faith judgement (after consultation with its independent financial advisor and outside legal counsel), after considering the terms of any proposed amendment or modification to this Agreement or the Financing Commitments, that the Acquisition Proposal continues to constitute a Superior Proposal and the failure to effect a Change of Recommendation with respect to such Acquisition Proposal would still be inconsistent with the directors’ fiduciary duties under applicable Laws.
(d) Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to obtaining the Company Requisite Vote, if an Intervening Event has occurred and the Board of Directors determines, in its good faith judgement upon the recommendation of the Special Committee, after consultation with its financial advisor and outside legal counsel, that failure to make a Change of Recommendation would be inconsistent with the directors’ fiduciary duties under applicable Law, the Board of Directors (upon the recommendation of the Special Committee) or the Special Committee may effect a Change of Recommendation; provided that prior to effecting a Change of Recommendation in connection with an Intervening Event in accordance with this Section 6.3(d), (i) the Company shall have provided a prior written notice (the “Notice of Intervening Event”) to Parent that the Board of Directors intends to effect a Change of Recommendation pursuant to this Section 6.3(d), describing in reasonable detail the facts of such Intervening Event, and (ii) the Company (A) shall, and shall cause its Representatives to, during the period beginning at 5:00 p.m. Hong Kong Time on the day of delivery by the Company to Parent of such Notice of Intervening Event (or, if delivered after 5:00 p.m. Hong Kong Time or on any day other than a Business Day, beginning at 5:00 p.m. Hong Kong Time on the next Business Day) and ending five Business Days later at 5:00 p.m. Hong Kong Time (the “Intervening Event Notice Period”) negotiate with Parent and its Representatives in good faith (to the extent Parent desires to negotiate) any proposed modifications to the terms and conditions of this Agreement or the Financing Commitments in a manner that obviates the need for such Change of Recommendation or so that the failure to effect a Change of Recommendation would no longer be inconsistent with the directors’ fiduciary duties under applicable Law, and (B) shall permit Parent and its Representatives during the Intervening Event Notice Period to make a presentation to the Board of Directors or the Special Committee regarding this Agreement or the Financing Commitments and any adjustments with respect thereto (to the extent Parent desires to make such presentation); and (iii) following the end of the Intervening Event Notice Period, the Board of Directors (upon the recommendation of the Special Committee) or the Special Committee determines, in its good faith judgment after consultation with its financial advisor and outside legal counsel, that failure to make a Change of Recommendation would still be inconsistent with the directors’ fiduciary duties under applicable Law.
(e) Nothing contained in this Section 6.3 shall be deemed to prohibit the Company or its Board of Directors (or the Special Committee) from taking and disclosing to its shareholders a position contemplated by Rule 14d-9, Rule 14e-2(a) or Item 1012 of Regulation M-A promulgated under the Exchange Act (or any similar communication to shareholders in connection with the making or amendment of a tender offer or exchange offer), making a customary “stop-look-and-listen” communication to the shareholders of the Company pursuant to Rule 14d-9(f) under the Exchange Act (or any similar communications to the shareholders of the Company) or from making any legally required disclosure.
(f) The Company agrees that it will as promptly as practicable (and, in any event, within 48 hours) notify Parent if it or, to its knowledge, any of its Representatives becomes aware that any Acquisition Proposal (or any inquiry, proposal or offer that could reasonably be expected to lead to an Acquisition Proposal) is received by, any non-public information is requested from, or any discussions or negotiations are sought to be initiated or continued with, the Company, its Board of Directors (or any committee thereof) or any Representative of the foregoing, indicating, in connection with such notice, the identity of the Person or group of Persons making such Acquisition Proposal (or such inquiry, proposal or offer that could reasonably be expected to lead to an Acquisition Proposal) and the material terms and conditions of such Acquisition Proposal (or such inquiry, proposal or offer that could reasonably be expected to lead to an Acquisition Proposal) and thereafter shall keep IHK Parent reasonably informed, on a reasonably current basis, of any material change to the status and terms of any such proposals Acquisition Proposal (or offers such inquiry, proposal or offer that could reasonably be expected to lead to an Acquisition Proposal) and the status of any such discussions or negotiations.
(bg) The Company agrees that it will take For purposes of this Agreement, the necessary steps to promptly inform each Company Subsidiary and each Representative of following terms shall have the Company or any Company Subsidiary of the obligations undertaken in this Section 6.05.meanings assigned below:
Appears in 2 contracts
Sources: Merger Agreement (Centurium Capital Partners 2018, L.P.), Merger Agreement (China Biologic Products Holdings, Inc.)
No Solicitation of Transactions. (a) The Company agrees that neither it nor shall immediately cease any existing discussions or negotiations, if any, with any parties conducted heretofore with respect to any Takeover Proposal (as defined below). The Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, and it shall use its reasonable best efforts to cause its officers, directors, employees, representatives, agents or affiliates, including any investment bankers, attorneys or accountants (collectively, "Representatives") retained by the Company or any of its Subsidiaries or affiliates not to, (i) solicit, initiate, solicit, encourage or otherwise facilitate (including by way of furnishing information) any inquiries or the making of any proposalproposals that constitute, or could reasonably be expected to lead to, a proposal or offer with respect to for a merger, reorganization, share exchangerecapitalization, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant a substantial portion of the assets or 20of the Company and its Subsidiaries, taken as a whole, sale of 15% or more of the equity securities ofshares of capital stock (including by way of a tender offer, share exchange or exchange offer) or similar or comparable transactions involving the Company or any of its Subsidiaries, other than the transactions contemplated by this Agreement (any of the foregoing inquiries or proposals being referred to in this Agreement as a "Takeover Proposal"), or (ii) engage in negotiations or discussions concerning, or provide any non-public information to any person or entity relating to, any Takeover Proposal. Notwithstanding anything in this Agreement to the contrary, the Board of Directors of the Company Subsidiary thatmay, at any time prior to adoption of this Agreement by the stockholders of the Company, furnish information (pursuant to a customary confidentiality agreement no more favorable, in the aggregate, to the party receiving information than the Confidentiality Agreement (it being understood that the Company may enter into a confidentiality agreement without a standstill or with a standstill provision less favorable to the Company if it waives or similarly modifies the standstill provision in the Confidentiality Agreement; provided that in no circumstances shall any such standstill provision in any such casefurther confidentiality agreement be more favorable with respect to the purchase of shares of Company Common Stock)) to, or engage in discussions or negotiations with, any person in response to an unsolicited bona fide written Takeover Proposal of such person, if, and only to the extent that, (A) the Board of Directors of the Company, after consultation with its financial advisors and outside legal counsel to the Company, determines in good faith that such Takeover Proposal could reasonably be expected to interfere constitute a Superior Proposal (as defined herein) and (B) prior to furnishing such information to, or entering into discussions or negotiations with, such person, the Company provides written notice to Newco to the effect that it is furnishing information 36 to, or entering into discussions or negotiations with, such person and the Company complies with Section 6.5(c).
(b) Notwithstanding anything in this Agreement to the completion contrary, in response to an unsolicited Takeover Proposal, the Company's Board of Directors shall be permitted (i) to withdraw, modify or change, or propose to withdraw, modify or change, the approval or recommendation by the Board of Directors of this Agreement, the Merger or the other transactions contemplated by this Agreement Agreement; or (ii) to approve or recommend, or propose to approve or recommend, any such proposal or offer being hereinafter Takeover Proposal, but only if, in each case referred to as an "Acquisition Proposal"in clauses (i) and (ii). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under of the Exchange Act with regard to an Acquisition Company concludes in good faith that such Takeover Proposal; (ii) engaging in , if consummated, would constitute a Superior Proposal. "Superior Proposal" means any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Takeover Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to which the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes of the Company determines in good faith (after consultation with its financial advisors and legal counsel and financial advisorscounsel) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal proposal and the Person person making the Acquisition Proposalproposal, and (i) would, if consummated, result in a transaction that is more favorable to holders the Company's stockholders (in their capacity as stockholders), from a financial point of Company Common Stock view, than the transaction transactions contemplated by this Agreement and (any ii) is reasonably capable of being completed (provided that for purposes of this definition the term Takeover Proposal shall have the meaning assigned to such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"term in Section 6.5(b), except that (Bx) the Company's Board reference to "15%" in the definition of Directors determines in good faith after consultation with legal counsel that such action is necessary for it Takeover Proposal shall be deemed to act in be a manner consistent with its fiduciary duties under applicable lawreference to "50%", (Cy) prior "Takeover Proposal" shall only be deemed to providing any information or data refer to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, transaction involving the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to assets (including the shares of any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, Subsidiary of the status and terms of any such proposals or offers and the status of any such discussions or negotiations.
(bCompany) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or and its Subsidiaries, taken as a whole, and not any Company Subsidiary of its Subsidiaries alone and (z) no such sale of assets shall be deemed to be "substantial" unless such sale is for at least 75% of the obligations undertaken in this Section 6.05assets of the Company and its Subsidiaries, taken as a whole.
Appears in 2 contracts
Sources: Merger Agreement (Blount Winton M), Agreement and Plan of Merger and Recapitalization (Blount International Inc)
No Solicitation of Transactions. (a) The From the date hereof until the earlier of (i) May 31, 2012 and (ii) the Closing, the Company agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not tonot, directly or indirectly, contact, initiate, solicit, encourage enter into or otherwise facilitate (including by way of furnishing information) conduct any inquiries discussions or the making of any proposalnegotiations, or offer enter into any Contract, with any Person with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution the direct or similar transaction involving, or any purchase or indirect sale of all or any significant portion of the its assets or 20% or more out of the equity securities ofordinary course of business, or a merger or consolidation of the Company or with any Company Subsidiary that, in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition ProposalPerson; provided, however, that nothing contained in this Agreement shall prevent prohibit or otherwise restrict the Company from initiating, soliciting, entering into or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; (ii) engaging in conducting any discussions or negotiations withnegotiations, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any PersonContract, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties conducted heretofore with respect to the sale or other disposition of any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, of the status and terms of any such proposals or offers and the status of any such discussions or negotiationsCompany’s assets located in India.
(b) The Company agrees shall, as promptly as practicable, advise ILDE of its receipt of any Acquisition Proposal and of the material terms of any proposal or inquiry, including the identity of the Person making the same, that it will may receive in respect of such Acquisition Proposal, and shall keep ILDE informed on a reasonably prompt basis with respect to any material developments with respect to the foregoing.
(c) Notwithstanding the restrictions set forth in Section 4.7(a), if the Company receives an Acquisition Proposal which was not solicited in violation of Section 4.7(a) and which constitutes a Superior Proposal, then the Company shall promptly provide ILDE written notice that complies with Section 4.7(b). Following receipt of such notice by ILDE, the Company may (x) furnish information with respect to the Company and its Subsidiaries to the Person making such Superior Proposal pursuant to a customary confidentiality agreement and (y) participate in discussions with respect to such Superior Proposal; provided, that the Company Board determines in good faith that failure to participate in such discussions or negotiations, furnish such information or take the necessary steps to promptly inform each Company Subsidiary and each Representative such other actions would constitute a breach of the Company Board’s fiduciary duties under applicable Law.
(d) Neither the Company Board nor any committee thereof shall withdraw or any modify, or propose publicly to withdraw or modify, in a manner adverse to ILDE, the approval or recommendation by the Company Subsidiary Board or such committee of the obligations undertaken issuance of the shares of Company Common Stock and Warrants and the grant of the right to purchase Units pursuant to this Agreement and the matters to be considered at the Stockholders’ Meeting (any such action, an “Adverse Recommendation Change”); provided, however, that nothing contained in this Section 6.05Agreement shall prohibit the Company or the Company Board from (x) taking and disclosing to its stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act if the Company Board determines, in good faith, that it would otherwise constitute a breach of its fiduciary duties to its stockholders under applicable Law to not take and disclose such position, (y) in the event that a Superior Proposal is made and the Company Board determines in good faith that it would otherwise constitute a breach of its fiduciary duties to the Company’s stockholders under applicable Law, making an Adverse Recommendation Change or (z) otherwise making any required disclosure to the Company’s stockholders if, in the good faith judgment of the Company Board, the failure to do so would reasonably be expected to violate its fiduciary duties under applicable Law or such disclosure is required under applicable Law.
Appears in 2 contracts
Sources: Securities Purchase and Exchange Agreement (Geoglobal Resources Inc.), Securities Purchase and Exchange Agreement (Israel Land Development Company- Energy Ltd.)
No Solicitation of Transactions. (a) The Company Each Stockholder agrees that neither it nor any Company Subsidiary shallthat, between the date of this Agreement and the date of termination of the Merger Agreement in accordance with its terms, such Stockholder shall not, and that shall not permit any of its subsidiaries or any of its or its subsidiaries’ directors, officers or employees to, and shall use its best efforts to cause the investment bankers, attorneys, accountants and other representatives retained by it shall cause or any of its and each Company Subsidiary's Representatives subsidiaries not to, directly or indirectly, initiate, : (i) solicit, initiate or knowingly encourage or otherwise facilitate (including by way of furnishing nonpublic information) ), or take any other action knowingly to facilitate, any inquiries or the making of any proposal, proposal or offer that constitutes a Competing Transaction; (ii) enter into or maintain or continue discussions or negotiations with respect any person or entity in furtherance of such inquiries or to obtain a mergerCompeting Transaction; (iii) agree to, reorganizationapprove, share exchangeendorse or recommend any Competing Transaction or enter into any letter of intent or other contract, consolidationagreement or commitment contemplating or otherwise relating to any Competing Transaction; or (iv) authorize or permit any of the officers, business combination, recapitalization, liquidation, dissolution directors or similar transaction involvingemployees of such Stockholder or any of its subsidiaries, or any purchase investment banker, financial advisor, attorney, accountant or sale of all or other representative retained by such Stockholder, to take any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, such action. Each Stockholder shall notify Parent as promptly as practicable (and in any event within two days after any senior executive of such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition ProposalStockholder attains knowledge thereof; provided, however, that nothing contained in this Agreement shall prevent the Company or if such senior executive is a director of the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under , the Exchange Act with regard notice to an Acquisition Proposal; (ii) engaging in any discussions or negotiations with, or providing any information to, any Person in response to an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), (A) the Company's Board of Directors concludes in good faith (after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated Parent required by this Agreement (Section 3.02 shall be provided within one day after such senior executive attains knowledge thereof) if any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information proposal or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested fromoffer, or any such discussions inquiry or negotiations sought to be initiated or continued withcontact with any person with respect thereto, regarding a Competing Transaction is made, specifying the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the material terms and conditions thereof and the identity of any proposals the party making such proposal or offersoffer or inquiry or contact. The Company agrees that it will Each Stockholder immediately shall cease and cause to be terminated any all existing activities, discussions or negotiations with any parties conducted heretofore with respect to a Competing Transaction. Nothing in this Section 3.02 shall prevent any Acquisition Proposal. The Company agrees that it shall keep IHK informed, on a current basis, Stockholder from acting in such Stockholder’s capacity as an officer or director of the status and terms of Company, or taking any action in such proposals or offers and capacity (including at the status of any such discussions or negotiations.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative direction of the Company or any Company Subsidiary of the obligations undertaken in this Section 6.05Board).
Appears in 2 contracts
Sources: Voting Agreement (Chippac Inc), Voting Agreement (Temasek Holdings LTD)
No Solicitation of Transactions. (a) The Neither the Company agrees that neither it nor any of the Company Subsidiary Subsidiaries shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, initiatetake (nor shall the Company authorize or permit its Representatives or, solicitto the extent within the Company's control, other affiliates to take) any action to (1) encourage or otherwise facilitate (including by way of furnishing nonpublic information), solicit, initiate or facilitate any Acquisition Proposal (as defined in Section 6.4(c)), (2) enter into any agreement with respect to any Acquisition Proposal or (3) participate in any way in discussions or negotiations with, or furnish any information to, any person in connection with, or take any other action to facilitate any inquiries or the making of any proposalproposal that constitutes, or offer with respect to a merger, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving, or any purchase or sale of all or any significant portion of the assets or 20% or more of the equity securities of, the Company or any Company Subsidiary that, in any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not lead to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, however, that nothing contained in this Agreement shall prevent if, at any time prior to the Company or obtaining of the Company's stockholders' approval of the Merger, the Board of Directors from (i) complying with Rule 14e-2 promulgated under of the Exchange Act with regard Company determines in good faith, based on the advice of outside counsel, that it is necessary to an Acquisition Proposal; (ii) engaging in any discussions or negotiations withdo so to discharge properly its fiduciary duties to stockholders, or providing any information tothe Company may, any Person in response to an unsolicited bona fide written Acquisition a Superior Proposal by any and subject to such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iiiparty's compliance with Section 6.4(b), (A) furnish information with respect to the Company and the Company Subsidiaries to the person making such Superior Proposal pursuant to a customary confidentiality agreement the benefits of the terms of which are no more favorable to the other party to such confidentiality agreement than those in place with Parent and (B) participate in discussions with respect to such Superior Proposal. It is expressly understood and agreed that with respect to the foregoing proviso, the Company's Board of Directors concludes legal and financial advisors shall be able to make inquiries, and engage in good faith discussions, with any party that has made an Acquisition Proposal (after consultation with its and such party's legal counsel and financial advisors) that in order to elicit information to allow the Board of Directors of the Company to determine in good faith if such Acquisition Proposal is reasonably capable of being completed, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, result in a transaction more favorable to holders of Company Common Stock than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as a "Superior Proposal"), (B) the Company's Board of Directors determines in good faith after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable law, (C) prior to providing any information or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offers. The Company agrees that it will shall cease immediately cease and cause to be terminated any and all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any an Acquisition Proposal. The Company agrees Proposal and promptly request that it shall keep IHK informed, all confidential information furnished on a current basis, behalf of the status and terms of any such proposals or offers and the status of any such discussions or negotiationsCompany be returned.
(b) The Company agrees will as promptly as practicable communicate to Parent any inquiry received by it relating to any potential Acquisition Proposal and the material terms of any proposal or inquiry, including the identity of the person and its affiliates making the same, that it will take may receive in respect of any such transaction, or of any such information requested from it or of any such negotiations or discussions being sought to be initiated with it; and shall keep Parent fully informed on a prompt basis with respect to any developments with respect to the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken in this Section 6.05foregoing.
Appears in 2 contracts
Sources: Merger Agreement (Motorola Inc), Merger Agreement (General Instrument Corp)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary shallshall not, directly or indirectly, and that it shall cause instruct its and each Company Subsidiary's Representatives officers, directors, employees, subsidiaries, agents or advisors or other representatives (including any investment banker, attorney or accountant retained by it), not to, directly or indirectly, initiate, solicit, initiate or knowingly encourage or otherwise facilitate (including by way of furnishing nonpublic information) ), or take any other action knowingly to facilitate, any inquiries or the making of any proposalproposal or offer (including any proposal or offer to its stockholders) that constitutes, or offer with respect may reasonably be expected to a mergerlead to, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involvingany Competing Transaction, or enter into or maintain or continue discussions or negotiate with any purchase person in furtherance of such inquiries or sale of all to obtain a Competing Transaction, or agree to or endorse any significant portion Competing Transaction, or authorize or permit any of the assets officers, directors or 20% or more employees of the equity securities of, the Company or any Company Subsidiary thatSubsidiary, in or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any Company Subsidiary, to take any such case, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposalaction; provided, however, that (i) nothing contained in this Agreement Section 6.05 shall prevent prohibit the board of directors of the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; a tender or exchange offer not made in violation of this Section 6.05, (ii) engaging with regard to such an offer, after receiving the advice of outside counsel, the board of directors of the Company determines in any discussions or negotiations withgood faith that it is highly probable that failing to do so would violate its fiduciary duties, or providing any information to, any Person nothing contained in response to this Section 6.05 shall prohibit the board of directors of the Company from considering and negotiating (including furnishing nonpublic information) an unsolicited bona fide written Acquisition Proposal acquisition proposal which (A) was not received in violation of this Section 6.05, (B) if executed or consummated would be a Competing Transaction and (C) is not subject to financing or financing is, in the good faith judgment of the board of directors of the Company after consultation with its financial advisors, highly likely of being obtained by any such Person; third party, or (iii) if after receiving the advice of outside counsel, the board of directors of the Company determines in good faith that it is highly probable that failing to do so would violate its fiduciary duties, nothing contained in this Section 6.05 shall prohibit the board of directors of the Company from approving or recommending such to the stockholders of the Company an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), acquisition proposal which (A) was not received in violation of this Section 6.05, (B) if executed or consummated would be a Competing Transaction, (C) is not subject to financing or financing is, in the Company's Board of Directors concludes in good faith (judgment of the board of directors of the Company after consultation with its legal counsel and financial advisors) that such Acquisition Proposal is reasonably capable , highly likely of being completed, taking into account all legal, financial, regulatory obtained by such third party and other aspects (D) the board of directors of the Acquisition Proposal and the Person making the Acquisition ProposalCompany determines in good faith, and wouldafter advice of its financial advisor to such effect, if consummated, result in a transaction is more favorable to holders of Company Common Stock the Company's stockholders than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as acquisition proposal, a "Superior ProposalSUPERIOR PROPOSAL"). The Company shall notify Parent promptly, (B) the Company's Board of Directors determines and in good faith no event later than one day after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable lawreceipt, (C) prior to providing if any information proposal or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested fromoffer, or any such discussions inquiry or negotiations sought to be initiated or continued withcontact with any person with respect thereto, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offersregarding a Competing Transaction is made. The Company agrees that it will immediately shall cease and cause to be terminated any all existing activities, discussions or negotiations with any parties conducted heretofore with respect to a Competing Transaction. Subject to the fiduciary duties of the Board of Directors of the Company, the Company shall not release any Acquisition Proposalthird party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party. The Company agrees shall use its best efforts to ensure that it shall keep IHK informedits officers, on a current basisdirectors, employees, subsidiaries, agents and advisors or other representatives (including any investment banker, attorney or accountant retained by it) are aware of the status and terms of any such proposals or offers and the status of any such discussions or negotiations.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken restrictions described in this Section 6.05.
Appears in 2 contracts
Sources: Merger Agreement (World Access Inc), Merger Agreement (Telco Systems Inc /De/)
No Solicitation of Transactions. (a) The Company agrees that neither it nor any Company Subsidiary shallshall not, directly or indirectly, and that it shall cause instruct its and each Company Subsidiary's Representatives officers, directors, employees, subsidiaries, agents or advisors or other representatives (including, without limitation, any investment banker, attorney or accountant retained by it), not to, directly or indirectly, initiate, solicit, initiate or knowingly encourage or otherwise facilitate (including by way of furnishing nonpublic information) ), or take any other action knowingly to facilitate, any inquiries or the making of any proposalproposal or offer (including, without limitation, any proposal or offer to its stockholders) that constitutes, or offer with respect may reasonably be expected to a mergerlead to, reorganization, share exchange, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involvingany Competing Transaction, or enter into or maintain or continue discussions or negotiate with any purchase person in furtherance of such inquiries or sale of all to obtain a Competing Transaction, or agree to or endorse any significant portion Competing Transaction, or authorize or permit any of the assets officers, directors or 20% or more employees of the equity securities of, the Company or any Company Subsidiary thatSubsidiary, in or any investment banker, financial advisor, attorney, accountant or other representative retained by the Company or any Company Subsidiary, to take any such caseaction; PROVIDED, could reasonably be expected to interfere with the completion of the Merger or the other transactions contemplated by this Agreement (any such proposal or offer being hereinafter referred to as an "Acquisition Proposal"). The Company further agrees that neither it nor any Company Subsidiary shall, and that it shall cause its and each Company Subsidiary's Representatives not to, directly or indirectly, have any discussion with or provide any confidential information or data to any Person relating to an Acquisition Proposal or engage in any negotiations concerning an Acquisition Proposal, or otherwise facilitate any effort or attempt to make or implement an Acquisition Proposal or accept an Acquisition Proposal; provided, howeverHOWEVER, that nothing contained in this Agreement Section 6.05 shall prevent prohibit the board of directors of the Company or the Company's Board of Directors from (i) complying with Rule 14e-2 promulgated under the Exchange Act with regard to an Acquisition Proposal; a tender or exchange offer not made in violation of this Section 6.05 or (ii) engaging with regard to such an offer, after receiving the advice of outside counsel to the effect that the board of directors of the Company is required to do so in any discussions or negotiations withorder to discharge properly its fiduciary duties, or providing any information toconsidering, any Person in response negotiating and approving and recommending to the shareholders of the Company an unsolicited bona fide written Acquisition Proposal by any such Person; or (iii) recommending such an unsolicited bona fide written Acquisition Proposal to the holders of Company Common Stock if and only to the extent that, in any such case as is referred to in clause (ii) or (iii), acquisition proposal which (A) was not received in violation of this Section 6.06, (B) if executed or consummated would be a Competing Transaction, (C) is not subject to financing and (D) the Company's Board board of Directors concludes directors of the Company determines in good faith (faith, after consultation with receipt of an opinion of its legal counsel and financial advisors) that advisor to such Acquisition Proposal is reasonably capable of being completedeffect, taking into account all legal, financial, regulatory and other aspects of the Acquisition Proposal and the Person making the Acquisition Proposal, and would, if consummated, would result in a transaction more favorable to holders of Company Common Stock the Company's stockholders, than the transaction contemplated by this Agreement (any such more favorable Acquisition Proposal being hereinafter referred to as acquisition proposal, a "Superior ProposalSUPERIOR PROPOSAL"). The Company shall notify Parent promptly, (B) the Company's Board of Directors determines and in good faith no event later than one day after consultation with legal counsel that such action is necessary for it to act in a manner consistent with its fiduciary duties under applicable lawreceipt, (C) prior to providing if any information proposal or data to any Person in connection with a Superior Proposal by any such Person, the Company's Board of Directors receives from such Person an executed confidentiality agreement on terms substantially similar to those contained in the Confidentiality Agreement and (D) prior to providing any information or data to any Person or entering into discussions or negotiations with any Person, the Company's Board of Directors notifies IHK promptly of such inquiries, proposals or offers received by, any such information requested fromoffer, or any such discussions inquiry or negotiations sought to be initiated or continued withcontact with any person with respect thereto, the Company, any Company Subsidiary or any of their Representatives indicating, in connection with such notice, the name of such Person and the terms and conditions of any proposals or offersregarding a Competing Transaction is made. The Company agrees that it will immediately shall cease and cause to be terminated any all existing activities, discussions or negotiations with any parties conducted heretofore with respect to any Acquisition Proposala Competing Transaction. The Company agrees shall not release any third party from, or waive any provision of, any confidentiality or standstill agreement to which it is a party. The Company shall use its best efforts to ensure that it shall keep IHK informedits officers, on a current basisdirectors, employees, subsidiaries, agents and advisors or other representatives (including, without limitation, any investment banker, attorney or accountant retained by it) are aware of the status and terms of any such proposals or offers and the status of any such discussions or negotiations.
(b) The Company agrees that it will take the necessary steps to promptly inform each Company Subsidiary and each Representative of the Company or any Company Subsidiary of the obligations undertaken restrictions described in this Section 6.05.
Appears in 2 contracts
Sources: Agreement and Plan of Merger and Reorganization (Sun Healthcare Group Inc), Agreement and Plan of Merger and Reorganization (Sun Healthcare Group Inc)